43 Fla. 545 | Fla. | 1901
Plaintiff in error was tried and convicted at a special term of the Suwannee Circuit Court held in March, 1901, on an indictment found at the regular Fall term of the court in November, 1900, alleging (formal parts omitted) that pursuant to- the provisions of an act to provide for the proper enforcément of the provisions of Article XIX of the constitution of 1885, an election was held in said county (Suwannee) on the twenty-seventh day of August, A. D. 1889, to decide whether the sale of intoxicating liquors, wines and beer should be prohibited therein, and at such election a majority of the votes cast was against sucff sale in said county, and thereafter, on the twenty-eighth day of July, A. D. 1900, in Suwannee county and State of Florida, one Joe Caldwell did then and there unlawfully sell wine, contrary to- the statute in such cases made and provided.
It is assigned as error and insisted on here that the court erred in overruling a motion ini arrest of judgment on grounds questioning the sufficiency of the indictment, but the only evidence we have, of such a motion is found in the bill of exceptions, and we can not consider it. It is the rule in this court that motions in arrest of judgment reach only such defects as are apparent upon the record proper. Golding v. State, 31 Fla. 262, 12 South. Rep. 525; Smith v. State, 29 Fla. 408, 10 South. Rep. 894; Bacon v. State, 22 Fla. 51; Jordan v. State, Ibid. 528. All matters appertaining to the record proper must be exhibited by it, and a bill of exceptions can not be utilized to present them, unless it be by legislative direction. Lovett v. State, 29 Fla. 356, 11 South. Rep. 172; Brown v. State, 29 Fla. 543, 10 South. Rep. 736; Roberson v. State, 42 Fa. 223, 28 South. Rep. 424; Brown v. State, 42 Fla. 184, 27 South. Rep. 869.
After proving the local option election in the county as alleged in the indictment, the State proved by a witness, H. A. Bleach, that he went to Caldwell’s house on or about the twentieth of July, 1900, and asked for wine; that defendant said he did not have any wine for sale, but did have some jewelry and handkerchiefs for sale, and that if witness would buy a quarter’s worth he- should have a quart of wine, or that defendant would give witness a quart of wine. Witness then picked out a small handkerchief and paid twenty-five cents for it, and defendant measured out a quart of wine and gave it to him, and that it was understood when payment was made on the handkerchief that witness was to have the wine. This occurred
The sufficiency of the indictment, as we have seen, is not properly presented, and we should not pass upon it, provided it does not entirely fail to allege the crime under the statute. The first statutory provision to enforce the provisions of Article XIX of the constitution of 1885 was Chapter 3700, laws of 1887. In the Revised Statutes of 1892 Chapter 3700 was made the basis of revision on this subject, and is found in sections 857 to 864 inclusive, part i, Title 11, Sec. 8, of said statutes. The penalty for violating the local option Article when put in operation by proper vote was contained in section 2634 of the revision, but this section was attempted to' be amended in 1897— Chapter 4551 — in such a bungling way as to be almost meaningless. This latter act was entirely repealed in 1899 by Chapter 4746, and it is under this act that this Case is brought. It provides that “whoever sells or causes to be sold any spirituous, vinous or malt liquor in any county or precinct which has voted against the sale of such liquors under the provisions of Chapter 8, Title 11, Division 1, Revised Statutes of the State of Florida, shall be pun
It is further contended for plaintiff in error that he could have been proceeded against only under section 2633 Revised Statutes providing that “whoever gives, or by pretended sale of any other article furnishes, any liquor, vane or beer to a customer, or permits the same to be done with a view to. entice custom., or to evade the law, shall be deemed a seller without a license, and liable to. the penalties for selling liquor without a license.” A party could not be indicted in a county voting against the sale of intoxicating liquors, wines or beer under this section as a seller without a license, for the reason that the law permitting a license to. issue under any circumstances has
The only other matter which has been argued (aside from the contention that the court improperly overruled a motion in arrest of judgment, which we can not consider for reasons stated) is that the court erred in overruling a demurrer of defendant to the evidence. The demurrant made no offer to reduce the evidence to a statement on the record of the facts proven or tended to be proven. The court might have disregarded entirely the offer of defendant to demur to the evidence because of a failure to comply with the rule in reducing the evidence to a proper record statement. If we are to conclude from the transcript that the court did undertake to consider the demurrer on the evidence that had been introduced in the case and exhibited to us in the bill of exceptions, we are of opinion that there was no error in the ruling. The testimony is sufficient to authorize the jury to infer a sale of wine by defendant in the year 1900, within the county that had prior to that time voted against the sale of intoxicating liquors, wines or beer, and as a conséquence put in operation in that territory Article XIX of the constitution, prohibiting the sale of such liquors.
The judgment of the court below will be affirmed, and it is so ordered.