Thomas v. State

• Decision Date: 26 October 1917
• Citation: 74 Fla. 200,76 So. 780
• Parties: THOMAS v. STATE.
• Court: Florida Supreme Court

76 So. 780

74 Fla. 200

THOMAS v. STATE.

Florida Supreme Court

October 26, 1917

Error to Criminal Court of Record, Orange County; T. Picton Warlow Judge.

Henry Thomas was convicted of offense of selling intoxicating liquors in the county which had voted against the sale of such liquors having before been convicted of the like offense, and he brings error.Reversed.

Syllabus by the Court

SYLLABUS

An information which charges that the defendant'did unlawfully engage in and carry on the business of a dealer in liquors,' in a certain county which had voted against the sale of such liquors, and that the defendant had been before convicted of a like offense and duly sentenced therefor sufficiently charges the offense of being 'a common liquor dealer in violation of law,' denounced by section 3 of chapter 6861,Laws of Florida 1915.

An information sufficiently clear in the allegations of fact to acquaint the defendant of the nature and cause of the accusation against him, and substantially in the language of the statute prohibiting the crime, and does not mislead or embarrass the accused in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense, should not be quashed as being insufficient in its allegations to charge an offense.

Conviction or acquittal upon an information or indictment charging the defendant as a second offense with having sold intoxicating liquors on a certain date in a county which had voted against the sale of such liquors under the provisions of article 19 of the Constitution is a defense of another prosecution based upon an alleged sale of intoxicating liquors prior to the date named in the first information or indictment.

The right of the defendant in certain cases to demand a bill of particulars and the power of the court to direct one independently of statutory authority is settled in this state.

In a criminal prosecution, where a bill of particulars is seasonably applied for and reasonably demanded, the matter of requiring the state attorney to supply it rests largely within the court's discretion; but that discretion is subject to review, and where the denial of the application may result in defeating justice, it will be treated as reversible error.

A motion for a continuance, based upon the ground of absent witnesses, is impertect, which does not show that the witness is within the jurisdiction of the court and diligence in attempting to procure his attendance.

A verdict is not defective as to the identity of the person convicted or the crime of which he was found guilty when by reference to the record it is made clearly to appear that the jury intended to find the defendant guilty of the crime charged.

A judgment imposing a fine and containing a provision that in default of the payment of the fine the defendant be confined in the penitentiary is defective under a statute prescribing punishment upon conviction by fine or imprisonment, or both fine and imprisonment.

Section 4011 of the General Statutes of Florida(Comp. Laws 1914, s 4011) provides that in such case as mentioned in the preceding headnote the alternative sentence shall be confinement in the county jail.If the sentence is one of both fine and imprisonment in the state prison provision may be made in the sentence for an additional period of imprisonment in the state prison in case of default in payment of the fine.

When objection is made to a question propounded to a witness at the trial, and the objection is overruled, an exception should be taken to the ruling of the court in order to secure consideration by this court of the merits of the objection.

Before pronouncing sentence upon a person convicted of crime, the judge of the court pronouncing the sentence should ask the prisoner if he has anything to say why sentence should not be pronounced upon him.

COUNSELJohn C. Jones and J. A. Rowe, both of Orelando for plaintiff in error.

Van C. Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

ELLIS, J.

The plaintiff in error was convicted of the offense of selling intoxicating liquors in a county which had voted against the sale of such liquors having before been convicted of the like offense.

The prosecution was begun by an information filed in the criminal court of record for Orange county, in December, 1916.The trial occurred in March, 1917.The judgment imposed a fine of $1,000 upon the defendant below, and in 'default thereof be confined in the penitentiary for the term of 18 months.'

The information charged that the defendant on a certain date in December, 1916, in Orange county, 'did unlawfully engage in and carry on the business of a dealer in liquors, said county having voted against the sale of said liquors.And that the said Henry Thomas had been before that date, to wit, on the 17th day of September, 1914, convicted in the criminal court of record in the county of Orange and state of Florida of a like offense, and duly sentenced therefor to pay a fine,' etc.

The defendant, by his counsel, filed motions to quash the information and in arrest of judgment.Both motions contained the same grounds, and were overruled.Such rulings constitute the bases of the first and sixth assignments of error.It is contended in behalf of the plaintiff in error, hereinafter referred to as the defendant, that the information charges no offense; that the offense is not stated in the terms of the statute; that the offense is not so stated in the information as to apprise the defendant of what law he is charged with violating; and that the offense of being 'a common dealer in liquors contrary to law' is a continuing offense, and that a conviction or acquittal of the defendant under the information would be no bar to a prosecution of the offense of being 'a common dealer in liquors contrary to law.'

Chapter 6861,Laws of Florida 1915, entitled 'An act to amend section 3556 of the General Statutes of the state of Florida, relating to the sale of liquors in counties or precincts voting against such sales, and to amend section 3448 of the General Statutes of the state of Florida, relating to the sale of liquors without license, as amended by chapter 6179, Laws of Florida of 1911, and defining the term 'beer," by section 1 amends section 3556 of the General Statutes, and provides a penalty for the sale of liquors in counties and precincts voting against such sale.Section 2 amends section 3448 of the General Statutes, and provides a penalty for the sale of liquor without a license.Section 3 of the act provides a penalty for the commission of either offense by one who had been before convicted of a like offense.This section is quoted in full here, and is as follows:

'Sec. 3.Whoever is convicted of selling or causing to be sold, any intoxicating liquors, wines or beer, in any county or precinct which has voted against the sale of such liquors, under the provisions of article XIX of the Constitution of the state of Florida, or whenever any person or persons, firm or association is convicted of selling or causing to be sold, or keeping for sale any intoxicating liquors, wines or beer, without his paying the license required by law, having been before convicted of the like offense, shall be deemed and adjudged to be a common liquor dealer, in violation of law, and shall be punished, upon conviction, by being fined not more than $3,000, or by imprisonment in the state prison not more than five years, or by both fine and imprisonment, in the discretion of the court.'

The information contains all the necessary allegations to charge the offense denounced by the section of the statute quoted.Every essential element of the offense was directly alleged.To allege in the information that the acts so charged constitute the offense of being 'a common liquor dealer in violation of law' is to allege a conclusion of law which was unnecessary to be made.If after stating the facts as alleged in the information the pleader had concluded by alleging that the defendant was thereby deemed to be 'a common liquor dealer,' etc., no force would have been added to the charge, nor would the allegations of fact thereby have been made clearer, nor would the information have been affected by the allegations of the pleader that the defendant was thereby deemed to be guilty of some other crime.It would be regarded as mere surplusage not affecting the sufficiency of the facts alleged to charge the crime of 'selling intoxicating liquors, wines or beer in a county which had voted against the sale of such liquors under the provisions of article 19 of the Constitution(the seller) having been before convicted of a like offense.'SeeMcCaskill v. State,55 Fla. 117, 45 So. 843.The information is sufficiently clear in the allegations of fact to acquaint the defendant with the nature and cause of the accusation against him, and substantially in the language of the statute prohibiting the crime.The information is not so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.Section 11, Bill of Rights;sections 3961,3962,Gen. Stats. of Florida 1906,Florida Compiled Laws 1914;McCaskill v. State, supra.See, also, Humphreys v. State,17 Fla. 381;Schley v. State,48 Fla. 53, 37 So. 518;Dickens v. State,50 Fla. 17, 38 So. 909;Strobhar v. State,55 Fla. 167, 47 So. 4;Mills v. State,58 Fla. 74, 51 So. 278;Edwards v. State,62 Fla. 40, 56 So. 401;Clark v. State,68 Fla. 433, 67 So. 135.Counsel for the defendant admit in their brief that if the defendant...