Whatley v. State

• Decision Date: 28 July 1903
• Citation: 35 So. 80,46 Fla. 145
• Parties: WHATLEY v. STATE.
• Court: Florida Supreme Court

35 So. 80

46 Fla. 145

WHATLEY v. STATE.

Florida Supreme Court, Division B.

July 28, 1903

Error to Circuit Court, Suwannee County; Bascom H. Palmer, Judge.

Wash Whatley was convicted of crime, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. The amendment of a criminal statute does not, under section 32 art. 3, Const. 1885, affect the prosecution or punishment of a crime committed before the amendment became effective, but as to such crimes the original statute remains in force.

2. An indictment charging the particulars of an offense under section 2598, Rev. St. 1892, as it stood prior to the amendment thereof by chapter 4965, p. 111, Acts 1901, but alleging the time of its commission as a day subsequent to the amendment, will not support a conviction for an offense committed prior to the amendment.

3. As a general rule, the precise date laid in the indictment as the time of the commission of an offense need not be proved, and there will be no variance if another day be proved, provided it be prior to the finding of the indictment, and within the statute of limitations. But every indictment must, on its face, charge the commission of a criminal offense, including matters necessary to enable the court to impose the proper sentence in case of conviction, and in determining its sufficiency in these respects the date alleged must be taken as the true date.

COUNSEL J. B. Johnson, for plaintiff in error.

J. B Whitfield, Atty. Gen., for the State.

OPINION

CARTER P.J.

In May 1902, in the circuit court of Suwannee county, the grand jury duly presented an indictment against the plaintiff in error charging that he 'on the 1st day of December, A. D. 1901, in the county and state aforesaid, with force and arms, unlawfully did then and there have carnal intercourse with an unmarried female under the age of sixteen years, to wit, one Phoebe Stewart, contrary to the statute in such case made and provided.' A trial was had at a subsequent term of the court, resulting in a verdict of guilty. Sentence was imposed, which, upon a writ of habeas corpus sued out by defendant, was held to be void. Thereafter, at a special term of the court, the defendant was resentenced, whereupon he sued out this writ of error. We deem it necessary to consider only one of the errors assigned, which is that the court erred in overruling the defendant's motion in arrest of judgment.

Section 2598, Rev. St. 1892, before its amendment, read as follows: 'Carnal Intercourse with Unmarried Female under Sixteen Years. Whoever has carnal intercourse with any unmarried female who is under the age of sixteen years shall be punished by imprisonment not exceeding twelve months or by fine not exceeding five hundred dollars.' By chapter 4965, p. 111, Act approved May 31, 1901, and which took effect on the day it was approved, the quoted section is declared to be amended so as to read as follows: 'Carnal Intercourse with Unmarried Female under Eighteen Years. Whoever has carnal intercourse with any unmarried female who is at the time of such intercourse under the age of eighteen years, shall be punished by imprisonment not more than ten years, or by fine not exceeding two thousand dollars, or by both fine and imprisonment.' The amendment, under section 32, art. 3, Const. 1885, does not affect the prosecution or punishment of a crime committed before it took effect, but as to such crimes the quoted section of the Revised Statutes remains in force. Raines v. State, 42 Fla. 141, 28 So. 57. It is very evident to the court that the indictment was framed with a view of charging an offense committed before the amendment. It follows the language of the section before its amendment, alleging the age of the female to be under 16 years. It alleges, however, that the offense was committed on December 1, 1901, a day subsequent to the amendment. It is true that, generally speaking, the precise date alleged in the indictment as the day upon which the offense was committed is not material, so that there will be no variance if another day be proved, provided it be prior to the finding of the indictment, and within the statute of limitations. But the indictment must on its face charge a crime sufficiently definite to enable the court to impose the proper sentence, and in determining its sufficiency in this respect the date alleged must be taken as true.

In Commonwealth v. Maloney, 112 Mass. 283, the court says 'It is true that generally in criminal prosecutions it is not necessary that the precise time alleged should be proved. But every indictment or complaint must allege a precise day, and the time alleged must be such that the record will show that an offense has been committed, and that the court may ascertain from it what punishment is to be imposed. When a statute makes an act punishable from and after a given day, the time of the commission of the act is an essential ingredient of the offense, to the extent that it must be alleged to have been after...