Wright v. State
| Decision Date | 02 May 1956 |
| Citation | 87 So.2d 104 |
| Parties | Fred WRIGHT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James T. Smith, St. Petersburg, for appellant.
Richard W. Ervin, Atty. Gen., and Joseph P. Manners, Asst. Atty. Gen., for appellee.
The appellant was tried on an information presenting the charge that he concealed or was concerned in concealing five gallons of intoxicating liquor commonly called 'moonshine' whiskey 'for or in respect whereof a tax is imposed by the beverage law or would be imposed if such beverage were manufactured in or brought into the State in accordance with the regulatory provisions thereof, with intent to defraud the State of Florida of such tax * * *.' (Italics supplied.) He was found guilty and sentenced to the penitentiary.
The appellant does not attack the sentence but he contends that the act defining the offense set out in the information contravenes Section 8 of the Declaration of Rights of the Constitution of Florida, F.S.A., prohibiting excessive fines and cruel and unusual punishment, because fine and imprisonment may be imposed for failure to pay what he calls a 'non-existent' tax. He objects 'to the statute itself because it inflects (sic) a penalty for the violation of a law impossible to obey.' We cannot resist the comment that this is ingenious reasoning. It may be impossible to pay a tax on 'moonshine' but it is certainly possible to obey the law by simply manufacturing, removing, depositing and concealing none of it. Section 562.32, infra.
In Harris v. State, 160 Fla. 720, 36 So.2d 372, 373, we approved an inforamtion which contained the charge that the appellant dealt with intoxicating liquor "in respect whereof a tax would be imposed if such beverage were manufactured in accordance with the regulatory provisions of the Beverage Laws of the State of Florida, and on which tax was not paid, with intent * * * to defraud the State of Florida of said tax." We consider the decision ample authority for upholding the information in the present case.
When a person 'removes, deposits, or conceals' legally manufactured liquor on which no tax has been paid, with intent to defraud the state of the revenue, he violates Section 562.32, Florida Statutes 1953, and F.S.A., and when he removes, deposits or conceals illegally manufactured liquor with such intent, he violates the same law in another way. Knowledge that a tax has not been paid and knowledge that it connot be paid are elements of equal saliency in the basic charge of dealing with liquor with intent to defraud the state.
The gravamen is the intent to defraud, Brown v. State, 152 Fla. 853, 13 So.2d 458, and that may be established either by proving concealment, removal or deposit of liquor legally manufactured on which a tax has not been paid, or liquor upon which, because of its illicit origin, no tax could be paid. Harris v. State, supra.
We have held the statute constitutional, Brown v. State, supra, and we reiterate that view. For the reasons already given we do not approve appellant's position that the statute imposes an impossible task and is for that reason unconstitutional because a penalty for disobedience then becomes cruel and unusual punishment.
While considering the next question we keep before us the guaranty in Section 918.09, Florida Statutes 1953, and F.S.A., that 'a defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding agrument before the jury.' (Italics supplied.) By decision the defendant is granted the opening argument as well, Smith v. State, 155 Fla. 148, 19 So.2d 698, and although the court may exercise some discretion in arranging the order of addresses to the jury, he cannot deprive the defendant of the right to have his attorney deliver the closing argument when he has offered no testimony save his own.
In the instant case the defendant had no testimony to offer. The court then had no testimony ot offer. The court then stated that the defendant had the right to open and close the argument before the jury, which was quite correct, but although the judge at one time in a colloquy between him and the attorney for the defendant said that if the defendant waived the first argument he would also waive the closing argument 'unless the state argues,' his ultimate ruling was that if the defendant's attorney wished to make a closing argument he had to make an opening one. So the defendant waived the first address, the state argued and the defendant was deprived of a reply. This was...
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Birge v. State
...119 Fla. 38, 160 So. 511; Landrum v. State, 79 Fla. 189, 84 So. 535; Meade v. State, Fla.1956, 85 So.2d 613. As recently as Wright v. State, Fla.1956, 87 So.2d 104, we recognized the preposition that while a trial judge may exercise some discretion in arranging the order of addresses to the......
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Terwilliger v. State, s. 87-2024
...neither testified nor offered any evidence in his behalf. He therefore was entitled to the last argument before the jury. Wright v. State, 87 So.2d 104 (Fla.1956) ("concluding" means the last The record reveals that the lower court, in granting additional closing arguments, was influenced b......