Caesar v. State , 50 Fla. 1 ( 1905 )

Hocker, J.

Sam Caesar was indicted at the Spring term of the Circuit Court of Columbia county for illegally selling liquor in that county. The indictment is in the following form, omitting the caption: “The grand jurors of the State of Florida, duly chosen, empannelled and •sworn diligently to inquire and true presentment make in and for the body of the county of Columbia, upon their oath present that one Sam Caesar on or about the 10th day of January, A. D. 1904, in the county and State aforesaid, with force and arms unlawfully engage in and carry on the business of a dealer in intoxicating spirituous, vinous and malt liquors, which said county had voted against the sale of said liquors, contrary to the statute in such case made and provided.

L. E. ROBERSON,

State Attorney.”

A motion was made to quash the indictment on the grounds, in substance, that it was vague and indefinite, that it charged no crime under the laws of Florida, that it does not allege that Columbia county had voted against the sale of liquors within two years, that thé act charged was unlawful. This motion was overruled. The defendant was tried and convicted, and then moved in arrest of judgment, which motion was overruled. After sentence he sued out a writ of error.

The assignments of error are: 1st. That the court erred in overruling the motion of plaintiff in error to quash the indictment.

2nd. The court erred in overruling the motion of the plaintiff in error for an arrest of judgment.

In his brief here the plaintiff in error .first attacks the constitutionality of the act under which the indictment was drawn, viz: Chapter 4930, Laws of 1901, on two grounds: first, that the act embraces two subjects, and, second, that the form of indictment provided in section 8 of the act, and which the indictment attempts to follow, does not inform the accused of the nature of the accusation against him.

Both of these propositions have been heretofore decided against the contention of the accused. See Brass v. State, 45 Fla. 1, 34 South Rep. 307; Crabb v. State, 47 Fla. 24, 36 South. Rep. 169.

The next and only other point made in the brief is that in attempting to follow the form of indictment prescribed by section 8 of the act (Chapter 4930, Laws 1901) the pleader omitted the word “did” before the word “engage,” and therefore that no criminal act is charged to have been committed. We are referred to decisions in several States, particularly in Texas and Louisiana, where it is held that the omission of the auxiliary word “did” before the verb expressing the action, is fatal in an indictment. State v. Daugherty, 30 Texas 360; State v. Graham, 49 La. Ann. 1524, 22 South. Rep. 807. We are, however, inclined to the view, applying the provisions of section 2893 Revised Statutes of 1892, that where the omission of a word from an indictment is plainly a mere clerical misprision', and where the meaning i» perfectly clear from the context, and consequently that the accused was not misled or embarrassed in making his defense, and will not be exposed to substantial danger of a new prosecution for the same offense. The court should not for that reason reverse a judgment. This position is sustained by Dickens v. State, 50 Fla. 17, 38 South. Rep. 909; State v. Whitney, 15 Vt. 298; State v. Edwards, 19 Mo. 674; Abernathy v. State, 78 Ala. 411; People v. Duford, 66 Mich. 90, 33 N. W. Rep. 28. In the last cited case the court remarks that the omission of the word “did” should have been brought to the attention of the trial court in a motion to quash. We are constrained to say that in the case at bar the grounds of the motion to quash are very general, and it does not appear from the record that the precise matter was called to the attention of the trial judge, or prosecuting attorney. If this course had been pursued doubtless the omission would have been supplied by another indictment, or by an information.

The judgment of conviction is affirmed.

Taylor and Parkhill, JJ., concur. Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.