Thorp v. Smith
| Decision Date | 27 June 1912 |
| Citation | 59 So. 193,64 Fla. 154 |
| Parties | THORP et al. v. SMITH, Sheriff. |
| Court | Florida Supreme Court |
Error to Circuit Court, Volusia County; J. W. Perkins, Judge.
Application by C.J. Thorp and others for habeas corpus to E. L. Smith Sheriff. Judgment remanding the applicants to custody, and they bring error. Reversed, with directions.
Syllabus by the Court
Where persons have been convicted and are held under an information charging an act for which the court had no jurisdiction to try or punish them, they may be discharged on habeas corpus.
At common law the time when an alleged offense was committed should be stated in the indictment or information; but, where the exact time is not material or does not enter into the nature of the offense, the time may be laid on any day previous to the filing of the indictment or information during the period when there may be a prosecution for the alleged offense, and there is no bar of the statute of limitations.
Every indictment must on its face charge the commission of a criminal offense, and, where time is material, the date alleged must be taken as the true date.
Where punishment for an offense depends upon a recent statute, time becomes a material element in stating the offense, and the date specifically alleged must be taken as the true date when the alleged act was committed.
When an indictment does not allege a punishable crime because of the stated date of the act charged, the date alleged is material and the acts charged cannot be shown to have been committed at another time. In such cases the court has no jurisdiction to try and punish.
Where time is a material element in stating an offense, and the time specifically alleged in the charge is a date when there was no law in existence penalizing the act, proof of the alleged offense at another time is not admissible, and the information does not allege an offense. Where an information does not allege a crime, the statute of jeofails does not apply.
Where the statute making an act punishable takes effect in August and the offense is alleged to have been committed in July previous, the date is material, and, the date alleged being prior to the taking effect of the statute, no punishable offense is alleged, and the defendant may be discharged in habeas corpus.
COUNSEL Stewart & Bly, of De Land, for plaintiffs in error.
Park Trammell, Atty. Gen., for defendant in error.
The plaintiffs in error were convicted upon a charge that on July 22, 1911, they violated section 1 of chapter 4562, Acts of 1897. On habeas corpus proceedings the convicted persons were remanded to custody and allowed a writ of error.
If the plaintiffs in error have been convicted and are held under an information charging an act for which the court had no jurisdiction to try or punish them, they may be discharged on habeas corpus. Ex parte Bailey, 39 Fla. 734, 23 So. 552; Lewis v. Nelson, 62 Fla. 71, 56 So. 436.
At common law the time when an alleged offense was committed should be stated in the indictment or information; but, where the exact time is not material or does not enter into the nature of the offense, the time may be laid on any day previous to the filing of the indictment or information, during the period when there may be a prosecution for the alleged offense under the statute of limitations. See Alexander v. State, 40 Fla. 213, 23 So. 536.
Where time is material, it must be proved as alleged. Every indictment must on its face charge the commission of a criminal offense, and, where time is material, the date alleged must be taken as the true date. Where punishment for an offense depends upon a recent statute, time becomes a material element in stating the offense, and the date specifically alleged must be taken as the true date when the alleged act was committed. See Whatley v. State, 46 Fla. 145, 35 So. 80.
When an indictment does not allege a punishable crime because of the stated date of the act charged, the date alleged is material and the acts charged cannot be shown to have been...
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Hunter v. State
...v. State, 27 Fla. 362, 8 So. 748; Chandler v. State, 25 Fla. 728, 6 So. 768; Straughter v. State, 83 Fla. 683, 92 So. 569; Thorp v. Smith, 64 Fla. 154, 59 So. 193; 16 C.J. 529; 14 R. C. L. 180; 1 Bishop's New Crim. Proc. § 400; 1 Wharton's Crim. Proc. (10th Ed.) § 103, p. 300. Time is mater......
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Neisel v. Moran
... ... operative. Sammis v. Bennett, 32 Fla. 458, text 460, ... 14 So. 90, 22 L. R. A. 48; Thompson v. State, 56 ... Fla. 107, 47 So. 816; Thorp v. Smith, 64 Fla. 154, ... 59 So. 193; In re Alexander, 53 Fla. 647, 44 So ... 175; State v. Bentley, 80 Kan. 227, 101 P. 1073; ... Gilbert ... ...
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Ex Parte Amos
... ... To the ... same effect are: In re Robinson, 73 Fla. 1068, 75 ... So. 604, L. R. A. 1918B, 1148; Thorp v. Smith, 64 ... Fla. 154, 59 So. 193; Hardee v. Brown, 56 Fla. 377, ... 47 So. 834; Kinkaid v. Jackson, 66Fla. 378, 63 So ... 706; Pounds ... ...
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In Re Robinson, in Re
...allege a crime under any statute; inartificiality in pleading will not avail. Jackson v. State, 71 Fla. 342, 71 So. 332. In Thorp v. Smith, 64 Fla. 154, 59 So. 193, a judgment the circuit court remanding the petitioners was reversed because the indictment alleged the offense to have been co......