State v. Parker

Decision Date21 February 1924
PartiesSTATE ex rel. SELLARS v. Parker, Superintendent of City Prison Farm.[*]
CourtFlorida Supreme Court

Rehearing Denied May 14, 1924.

Error to Circuit Court, Duval County; De Witt T. Gray, Judge.

Habeas corpus proceeding by the State, on the relation of Harlis Sellars, against Byron Parker, Superintendent of City Prison Farm, City of Jacksonville, Duval County, Florida. Petition denied, and petitioner brings error.

Affirmed.

Browne J., dissenting.

Syllabus by the Court

SYLLABUS

Constitutional provision applicable only to cases in which right existed before adoption of Constitution. Section 3 of the Declaration of Rights in our Constitution, providing that 'the right of trial by jury shall be secured to all, and remain inviolate forever,' was never intended to extend the right of jury trial, but merely secures it in the cases in which it was matter of right before the adoption of the Constitution.

Constitutional provision not applicable to trial for violations of municipal ordinances. Trials in municipal courts for infractions of municipal ordinances were conducted generally without juries prior to the adoption of our Constitution, and therefore do not fall within the constitutional guaranty, and offenders against such ordinances are not entitled to a jury trial in such courts.

Common law may be changed by statute; adoption of organic law relates to statutes changing common law. The common law may be changed by statute, when not forbidden by organic law; and when the common law is changed by statute, the subsequent adoption of organic law has relation to existing statutes that change the common law.

Statutes may authorize imposition of imprisonment for violation of ordinance without jury trial. Prior to the adoption of the first Constitution of this state, municipalities when expressly authorized by law could impose imprisonment as a primary punishment for violations of valid public municipal ordinances; and under the Constitution authorizing the Legislature to prescribe the jurisdiction and powers of municipalities, statutes may authorize the imposition of imprisonment as a primary penalty for violating a valid public ordinance, without a jury trial, the right of trial by jury as it existed prior to the first Constitution of the state, not having been extended by organic law or by statute to trials for violating municipal ordinances.

Ordinance prohibiting operation of motor vehicles while intoxicated held not violative of due process clause. A municipal ordinance providing that 'it shall be unlawful for any person or persons, while under the influence of intoxicating liquor, or while in an intoxicated condition, to drive or operate any automobile or motor vehicle, over and upon the streets of the city of Jacksonville,' fixes a reasonably ascertainable standard of guilt, to be ascertained by the ordinary processes of municipal court trials, even though a question of degree of intoxication be involved.

One legally sentenced has appropriate redress, where there is unlawful enforcement or execution of penalty. Where the penalty as imposed is legal, if there is an unlawful enforcement or execution of the penalty that amounts to cruel or unusual punishment or to other violations of the rights of the person upon whom a legal sentence has been imposed, the law affords appropriate relief and redress.

Validity of ordinance or sentence not affected by right of judge to impose heavier sentence on some than on others. The mere fact that under the ordinance the municipal judge may impose a longer term of imprisonment on some offenders than on others within the limits fixed by the ordinance, does not affect the validity of the ordinance or the sentence in this case, which is the minimum term of imprisonment.

Municipal court judge need not be attorney at law. The laws of the state do not require the judge of a municipal court to be an attorney at law; and if the judge of such court is not an attorney at law, his official acts as such judge are not thereby rendered illegal.

COUNSEL

J. N. Morris and Julian Hartridge, both of Jacksonville, for plaintiff in error.

L. W Strum, of Jacksonville, for defendant in error.

OPINION

WHITFIELD, P.J.

An amended petition for a writ of habeas corpus, presented to the circuit judge, alleges that petitioner----

'was tried in the municipal court of the city of Jacksonville on October 29, 1923, under the charge of driving an automobile while under the influence of intoxicating liquor, in violation of Ordinance No. Q-71, as amended by Ordinance No. Q-112, of the city of Jacksonville, copy of which said ordinance and amendment thereto being hereto attached, marked Exhibit A and made a part hereof; that at said time and place he was found guilty by the judge presiding in said court without a jury, and was thereupon sentenced to imprisonment for a period of 30 days; that thereupon, by virtue of the conviction as aforesaid, and the sentence as aforesaid, he was delivered to the said Byron Parker, as superintendent of said prison farm of the city of Jacksonville, and that he has been ever since and still is confined by him, as aforesaid; that the detention as aforesaid is illegal and unlawful in this respect, to wit:

'That said Ordinance No. Q-71, being Bill No. Q-136, as amended by Ordinance No. Q-112, Bill No. Q-206, is unconstitutional and invalid, for the following reasons, to wit:
'(1) It is violative of section 11 of the Bill of Rights of the state of Florida, and the Fifth and Sixth Amendments of the Constitution of the United States, in that it does not require an ascertainable standard of guilt, and that it permits standards of guilt to be fixed by the court, and that it fails to secure the accused the right to be informed of the nature and cause of accusations against him.
'(2) It is violative of section 3 of the Bill of Rights of the Constitution of the state of Florida, which says that the right of trial by jury shall be secure to all and remain inviolate forever, and the ordinance provides that any person convicted shall be punished by imprisonment and does not provide for the alternative of a fine.
'(3) It is invalid, for that:
'(a) The ordinance as passed and amended is beyond the power granted by the Legislature to the council of the city of Jacksonville.
'(b) The ordinance provides that any person convicted shall be punished by imprisonment and does not provide for the alternative of a fine.
'(c) Because section 2 of article X, chapter 3775, of the Laws of Florida, which is section 53 of the Code of Jacksonville, as prepared in 1911 by P. H. Odom, provides:
"All persons tried in said court who shall be acquitted of the offenses charged against them shall be at once discharged.
"All persons convicted by said court shall forthwith pay all fines and costs assessed against them, in default whereof they may be committed: Provided, that if such persons shall appeal within three days from the judgment of the court they shall be released upon entering into bond, with good and sufficient security, in double the amount of the fine and costs assessed against them, conditioned to appear before the court to which cause is appealed, and to abide by and perform the judgment thereof.'
'And the penalty imposed by the ordinance and the sentence imposed upon petitioner by virtue of the ordinance do not fix any fine or assess any costs and are therefore beyond and exceed the legislative power given to the city council by the Legislature.'

The amended ordinance referred to as 'Exhibit A' is as follows:

'Section 1. It shall be unlawful for any person or persons, while under the influence of intoxicating liquor, or while in an intoxicated condition, to drive or operate any automobile or motor vehicle, over and upon the streets of the city of Jacksonville.'

'Any person or persons convicted of a violation of section 1 of this ordinance shall be punished as follows: For the first offense by imprisonment for a period of not less than thirty days, nor more than sixty days; for the second offense by imprisonment for a period of not less than sixty days; for the third and subsequent offense for a period of ninety days.'

The petitioner was remanded and was allowed and took writ of error under the statute. Section 3580, Rev. Gen. Stats. 1920; Carter v. State, 65 Fla. 347, 61 So. 591.

It is contended here that the ordinance 'is unconstitutional, because it denies petitioner the right of trial by jury, and provides for imprisonment as a punishment, and not as an alternative in default of the payment of a fine'; that 'the ordinance is beyond the authority given to the council of the city of Jacksonville by the state of Florida'; and that 'the ordinance is violative of section 11 of the Bill of Rights of the Constitution of the state of Florida and of the Fifth and Sixth Amendments of the Constitution of the United States.'

The Constitution of the state contains the following provisions:

'In all criminal prosecutions the accused shall have the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed, and shall be heard by himself, or counsel, or both, to demand the nature and cause of the accusation against him, to meet the witnesses against him face to face, and have compulsory process for the attendance of witnesses in his favor, and shall be furnished with a copy of the indictment against him.' Section 11, Declaration of Rights.

'The Legislature shall have power to establish and to abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time.' Section 8, art. 8, Const.

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