43 Fla. 477 | Fla. | 1901
Lead Opinion
The plaintiff in error, on information filed by the State Attorney, was tried and convicted in the Circuit Court of Hamilton county, at its. Spring term, 1901, of t)he crime of illegally selling liquors in' said county in violation of prohibition alleged to have been established in such county by an election there held on September 6th, 3898, and from the money fine imposed sued out this writ of error.
The assignments of error are as follows: 1st. The court erred in allowing the certified copy of the original canvass read in evidence. 2nd. The court erred in allowing the certified copy of the original canvass read in evidence, before hearing evidence as to the validity of the election-. 3rd. The court erred in sustaining the objections of the State Attorney to the following question propounded by the defendant’s attorneys to the witness I. J. McCall, to-wit: “As such Clerk are you in custody of any record, or is there any record showing that: notice of this local option election that was held in Hamilton county September 6th, 1898, was ever published by the clerk of the Circuit Court for the term of thirty days in any news-paper published in, said county?” 4th. The court erred, in sustaining the objections made by the State Attorney to the following question propounded by defendant’s attorneys to the witness I. J. McCall, to-wit: “Was there any notice given by the county commissioners or the clerk to the supervisor of registration or to the various district deputy registration officers, or to the tax collector as to the holding of said election?” 5th. The court erred in sustaining the objection made by- the State
All of the other assignments of error, except the nineteenth, twentieth and twenty-first, consist of rulings of the court admitting or rejecting evidence that tended to question the validity of the holding and conduct of such election, and to the registration and qualification of voters at such election, and to the formality of the ballots used thereat, and to the notices of the election, publication of the ñames of the inspectors, and generally tending to question the validity of such election. If any of these rulings were erroneous- from the standpoint of the objections urged against them, they can not avail the defendant here
The nineteenth, twentieth and twenty-first assignments of error, except as they have already been passed upon in what has been said, question the sufficiency of the evidence to support the court’s finding, a jury having been waived and the cause on both the law and facts having, by agreement, been submitted to the judge. We think the evidence fully supported the finding both as to the fact that prohibition had been established in said county by an election held, and as to the illegal sale in violation thereof, by the defendant.
The judgment of the Circuit Court is hereby affirmed.
Dissenting Opinion
dissenting.
This was a prosecution for an alleged violation of the local option law, the information alleging, with other matters, that “pursuant to the provisions of an act to provide for the proper enforcement of the provisions of Article XIX of the constitution of 1885, an- election was held in said county (Hamilton) on the sixth day of September, A. D. 1898, to decide whether the sale of intoxicating liquors, wines and beer should be prohibited therein, and at such election a majority of the-votes was cast against such sale in said county.” The case was tried before the court without a.jury, and on the hearing testimony was admitted bearing upon the validity of the calling, conducting and holding the election alleged in the information, and-also upon the qualification of voters who were permitted to vote at the same.
The -opinion says that if the rulings in reference to certain matters “were erroneous from the standpoint of the objections urged against them they can not avail the defendant here because, -except to the extent hereinafter indicated, it was improper for the court to permit either side to go into any inquiry whatever touching the validity and result of such election other than it was shown to be by -the record of the canvass of the result thereof by the proper canvassing board.” The extent to which the proof may go under the exception mentioned, as explained in a subsequent portion of the opinion, is that when the election has been properly called by the proper officials and the result-has been declared and recorded as provided by law, then irregularities in conducting the election cannot be shown in evidence unless they go¡ to the point of showing a want,of jurisdiction to call the election, or “unless they
The legislature in 1887, Chapter 3700, passed an act to provide for elections under and to properly enforce the provisions of Article XIX, or the local option article, of the constitution of 1885. After providing for the ordering of an election by the county commissioners, upon the written application of one-fourth of the registered voters of a county, to decide whether the sale of intoxicating liquors, wines or beer should be prohibited therein, it was enacted that “said election, shall be held and conducted in the manner prescribed by law for holding general elections, except as herein provided; that inspectors of election shall be appointed and qualified as in cases of general elections, and they shall canvass the vote cast and make due returns of the same to. the county commissioners within five (5) days after said election. * * * And should' a majority of the votes legally cast at any such
During the session of 1887, but subsequent to the passage of Chapter 3700, the legislature enacted a general election law, Chapter 3704, and therein introduced the new feature of having the registration of voters done under a supervisor of registration to be appointed by the Governor instead of the Circiut Clerk as was the case under former law's. The county commissioners appointed the precinct judges and inspectors of election who canvassed the vote and made returns in the shape of duplicate certificates of the result to the supervisor of registration and county judge of the county who, with the president, or other member, of the board of county commissioners, constituted the county canvassing board. The board was required to canvass the votes for the several offices- and persons as shown by the returns on file with the said
The act of 1899, the one in operation when the offence is alleged to' have been committed in the present case, is the same as that contained in the Revised Statutes and, I think, substantially the same as the act of 1887, so far as the point now involved is concerned; that is, providing a penalty for those selling in a county that had voted against the sale of intoxicating liquors. The Cook case holds pointedly that you must allege and prove that
This last act was amended in 1897 by Chapter 4552 as stated in the opinion and to which I refer. As be lore , stated, some confusion may have arisen in reference to the proper place to- record the result of the canvass, as directed by section 861 Revised Statutes, and when Chap - ter 4378 was passed, the legislature may have proceeded upon the view that the record was exclusively in the office of the supervisor of registration. The county commissioners are, however, directed to keep proper minutes of their proceedings and the act of 1897, Chapter 4552, was passed with the view of making the certificate of the Circuit Clerk as to the record of the minutes of the proceedings of the county commissioners as to such elections evidence in criminal prosecutions under the local option acts. This act of 1897 provides that a copy of the record •of the result of the canvass of the returns of the election as made by the county canvassing board and recorded ift the minutes of the proceedings of the board of county commissioners, duly certified to by the Circuit Clerk, ■shall be prima facie evidence that the election was. legally called, conducted and holden. This statute clearly intends to prescribe a rule of evidence in criminal prosecutions under local option regulations, and I am unable to construe the term “prima facie” as conclusive, as such is not its natural meaning, and there is nothing in. the context to require such a distortion of its meaning. The rule is general, so far as I can see, that when statutes prescribe a rule of evidence and make certain facts, or documents, prima facie evidence they are not to have a conclusive effect, but may be overcome by other testimony. 19 Am. & Eng. Ency. of Law, page 83. The
The legislature has prescribed a rule of evidence by Chapter 4552 in prosecutions under' our local option law, and in the absence of any other legislation we should give to the certificate in reference' to its evidentiary force only a prima facie bearing. No way was provided by statute for contesting or annulling the result of the local option election, however gross may have been the management of it, or unjust the canvass of the legal vote actually cast, until the act of the present year, and it may be that a different rule should prevail under the present statutory regulations on the subject; but that is not involved in this case. The decision in the present case should depend upon a construction of our statutes in the light of past