80 Fla. 613 | Fla. | 1920
In October, 1919, Columbus Norwood was indicted for the “manufacture” of “alcoholic and intoxicating liquors” in Gadsden County. It was alleged that the “sale of liquors” was prohibited in that county by law, and that the accused had theretofore, in May, 1919, in Gadsden County been convicted of manufacturing alcoholic and intoxicating liquors. The offense was alleged to have been committed in July, 1919. A motion to quash the indictment upon the ground that it charged no offense under the laws of Florida was denied.
Section 23 of Chapter 7736, Acts 1918, provides that the Act shall be “construed as supplementary to the Act approved April 21th, 1917, (Chap. 7283) and so much of said Act as is not clearly inconsistent with the provisions of this Act shall remain in full force and effect throughout the State when this Act goes into effect.” The purpose seems to have been to enact a new statute under Article XIX as amended, of the Constitution, and retain as many of the provisions of the old law as possible, upon the theory perhaps that if any delinquent might escape the provisions of the new, he could be caught under the old' Act. The indictment seems to have been drawn upon the same principle, which is not to be recommended so far as pleading is concerned, because there is danger always of misleading the accused and embarrassing him in the preparation of his defense, and if the two statutes are in any wise inconsistent or contradictory or define different offenses the indictment would be bad. See Townsend v. State, 63 Fla. 46, 57 South. Rep. 611; Clark v. State, 68 Fla. 133, 67 South. Rep. 135. This indictment, however, cannot be said to be so vague and indefinite as to mislead the accused. The manufacture of alcoholic or intoxicating liquors in a county which had voted against the sale of such liquors was an offense under the
The case of Shields v. State, 78 Fla. 524, 83 South. Rep. 391, relied upon by counsel for plaintiff in error, is not in point. Shields was charged with an offense alleged to have been committed prior to the enactment of the statute under which he was indicted. In that case the terms of the new Act were essentially different from those of the Act which was in force when the offense was alleged to have been committed. There was no error in denying the motion to quash the indictment.
The Attorney General has made two motions in this case, both filed upon the same day. One to strike the bill of exceptions upon the ground that no “assignment of errors was filed or presented with said bill of exceptions” and no notice was given to the opposite party of the settling of the bill of exceptions. It appears from the certificate of the judge that the first ground is true. There is
Special Eule 1, Avhich is applicable to civil causes, but under Special Eule 6 may be used in criminal cases, requires that at the time of presenting a bill of exceptions to the Judge of the Circuit Court to be made up and settled for the appellate court the plaintiff in error shall present with such bill an assignment of errors specifically mentioning each point that he intends to present in and by such bill of exceptions as ground for reversal, etc. The bill of exceptions appears to have been made up under Eule 103, which does not require an assignment of errors to be presented with the bill of exceptions when it is to be authenticated. The two motions are therefore denied.
The first and second assignments of error question the sufficiency of the evidence to support the verdict and the
The evidence was insufficient to establish either the alcoholic or intoxicating properties of the “buck.” We also think there was error in denying the motion to strike the testimony of the witness Mr. Morgan, Clerk of the Circuit Court for 'G'adsden County, Avho read from “Criminal Docket No. 3” an entry of the judgment of the county court in the case of State v. Columbus Norwood, dated May 13, 1917. The allegation in the indictment that the' defendant had been theretofore convicted of a like offense Avas a necessary element in the crime with which he was charged. The whole record of the first judgment of conviction should have been offered. See Watson v. Jones, 41 Fla. 241, 25 South. Rep. 678; Clem v. Meserole, 44 Fla. 234, 32 South. Rep. 815.
Chapter 4723, Laws of 1899, Section 1522, General Statutes, 1906, Florida Compiled Laws, 1914, does not apply to judgments rendered by County Courts.
For the errors pointed out the judgment is reversed.