Brass v. State, 45 Fla. 1

Brass v. State

45 Fla. 1 | Fla. | 1903

Maxwell, J.

The plaintiff in error was convicted of carrying on the business of a liquor dealer in violation of the local option law.

The information against him, following the statutory form, alleged that he “did on or about the 1st day of December, A. D. 1901, unlawfully engage in and carry on the business of a dealer in liquors in election district number 15 of said county, which said county had voted against the .sale of said liquors,” etc.

The defendant filed a motion that the State Attorney be required, to furnish him with a bill of particulars, accompanying the motion with an affidavit to the effect that the information did not apprise him of the particular offense intended to be proven on the trial, did not inform him to whom the liquor was sold, nor what kind of liquor was sold, and that he did not know, and had *3no means of knowing, what offense the State intended to prove. The motion was denied by the court, and this ruling is assigned as error.

The right of a defendant to demand a bill of particulars, and of the court to direct one independent of express statutory authority, is recognized by this court in the case of Thalheim v. State, 38 Fla. 169, 20 South Rep. 938, where the subject is discussed at some length. As said there the object of such bill of particulars is not to cure a defect in the indictment, but to inform the defendant with greater certainty of the precise nature of an accusation properly charged in the indictment. United States v. Tubbs, 94 Fed. Rep. 356, text 360. The rights of a defendant to make this demand will depend then not upon any rigid rule of pleading, but upon the question whether the nature of the case is such that in fairness the defendant should have fuller information of the charge against him than is given by the indictment-alone. This may depend largely upon the circumstances of the particular case, and the courts therefore hold that it is a matter of discretion whether such bill shall in any case be required (Thalheim v. State, supra; United States v. Tubbs, supra; State v. Reno, 41 Kan. 674, 21 Pac. Rep. 803; Commonwealth v. Wood, 4 Gray, 11; State v. Bacon, 41 Vt. 526; State v. Nagle, 14 R. I. 331); and several of them hold that the exercise of this discretion is not the subject of review by an appellate court. We do not follow them in this, but it serves to emphasize the caution which should govern an appellate, court in determining whether there has been an abime of such discretion by the trial court.

In the ease-at bar we do not find that the court erred *4in denying the motion. The crime charged was that of unlawfully carrying on the business of a liquor dealer, it is true that this may. be proved by showing a single sale, but it may also be proved by showing a systematic course of trade which would hardly admit of specification in a bill of particulars and certainly would not demand one, and it is the latter phase of the crime which the evidence here tends to show. Moreover, the election adverse to the sale of liquors was held only four months prior to the filing of the information against the defendant, and the range of inquiry was limited to this period rather than to the two years ordinarily -open to the State in proving its charges.

The defendant then moved to quash the information. All of those grounds of the motion are based upon the uncertainty of the allegations of the information, except the sixth, are disposed of by the rulings of this court in the cases of Jordan v State, 22 Fla. 528; Dansey v. State, 23 Fla. 316, 2 South. Rep. 692; and Roberts v. State, 26 Fla. 360, 7 South. Rep. 861, where it is held that an indictment for selling liquors without a license, or carrying on the business of a dealer in liquors without a license, need allege neither “the name of a person to whom the liquor was sold or the particular liquor sold, nor that the defendant had a place of business, nor that his place of business was in an election district of a county.”

The sixth ground of the motion is “because the said information does not allege that the liquor charged to have been sold was intoxicating liquor.” Chapter 4930 of the acts of 1901, under which this information is prosecuted, in section 1 provides that “whoever sells, or *5causes to be sold, any spirituous, vinous, malt or other intoxicating liquors in' any county or precinct which has voted against the sale of such liquors * * * shall be punished,” etc.; and in section 8 prescribes a form of indictment or information to be used in prosecuting offenders thereunder. This form, which was followed in the information before as, alleges that the defendant did “engage in and carry on the business, of a dealer in' liquors,” without other designation of the character of the liquors. The legislature has power to regulate the forms to be pursued in indictments for crime, but can not in exercising this power invade the constitutional right of the accused to “demand the nature and cause of the accusation against "him.” The form prescribed must charge the crime. Reyes v. State, 34 Fla. 181, 15 South. Rep. 875; Brown v. People, 29 Mich. 232; People v. Olmstead, 30 Mich. 431; Noles v. State, 24 Ala. 672; State v. O’Flaherty, 7 Nev. 153; McLaughlin v. State, 45 Ind. 338; Hewitt v. State, 25 Texas, 722.

Does the omission of the word, “intoxicating,” before the word “liquors,” in the form of information provided for by the statute infringe this rule? We think not. The word “liquor” may be used in either of two senses. The first is practically synonymous with “liquid.” The second as given in Webster’s Dictionary is “2. Specifically, alcoholic or spirituous fluid either distilled or fermented, as brandy, wine, whisky, beer, etc.” In common parlance the word is universally understood in the latter sense when used as it- is here in speaking of a dealer in liquors. This being true, when the, statute first prescribes a penalty for dealing in intoxicating liquors, and then prescribes *6a form of indictment to be used in prosecuting for a breach of this law, using therein only the. word .-Tiquors,” it is beyond .cavil that the word is used in the. special. sense of intoxicating liquors as above defined, and that under such an indictment the sale only of such liquor can he shown.

Under the eighth ground of the motion to quash it. is contended that Chapter 4930 of the acts of 1901, under which the charge is prosecuted, is unconstitutional in that it embraces more than one subject matter, The act in question provides for the punishment not only of those selling liquor in counties or precincts voting against such sale, but also of those selling liquor without a license in counties voting for its sale. Upon the authority of Butler v. State, 25 Fla. 347, 6 South. Rep. 67, it is urged that this includes two subjects repugnant and inconsistent, and not properly embraced in a single act. That case holds that the one crime is based upon conditions which exclude 1 lie operation of the law proscribing the other offense, and that for this reason the two offenses can not be joined in a single indictment. The law governing the joinder of counts in an indictment we will not examine. The single subject of legislation in the act under consideration is the punishment of the Illegal sale of liquor, and both-provisions of the statute are embraced within.this subject.

The motion 1o quash was properly denied.

The remaining assignments of error insisted, upon here question the sufficiency of the evidence to support the verdict. ‘

The evidence shoAved the sale of, liquor by the defendant in December, 1901. , The election to determine *7whether liquor should be sold in the county was held on. the 29th day of the preceding August. To show #this-election and its result the State introduced in evidence a copy of the record of the Board of ('ounly Commissioners showing the canvass had of the return of the election. This copy of the record did not show the date of the canvass, and it is contended that in the absence of this it did not appear that the cicerón had become operative at the time of the sale of liquor by the defendant. This canvass of the votes is, under the statute, to be made within six days after the election. Section 7 of Chapter 4930, under which the copy was introduced in evidence, provides that “the introduction of a copy of the record of the result of the canvass of the returns of the election * * * shall be taken as prima facie evidence that said election was legally called, conducted and holden.” If, then, the canvass is included within the conducting or holding of the election, the copy of the record of the canvass became prima facie evidence time the canvass was had in accordance with the directions of the statute. The Supreme Court of South Carolina in Blake v. Walker, 23 South Carolina, 517, held that “the conduct of an election ’ does not literally include a declaration of the result, but the word ‘conducted’ in the local option law had a wider meaning and *' * * was intended to embrace also a declaration of the result.” The words “conducted and Rolden” in our statute should receive the same construction. By the provision that the record of the' canvass should be evidence of an election legally called, conducted and holden, it was certainly intended that the result of the election, as well as the fact that an election had been had, should *8be shown thereby, and this includes the canvass. The presumption from this record, therefore, is that the canvass was held in accordance with law within six days •after the 29th day of August, 1901, and that the sale of liquor in the following December wag. in violation of law. There is nothing in the evidence to rebut this pressumption, and the judgment of the court below will be affirmed.