Brown v. State , 152 Fla. 853 ( 1943 )

I agree to the order of reversal. The majority opinion reverses the judgment largely on a point of procedure, while I think the penalty of seven years imposed for the two offenses under Section 562.32, Fla. Stats. 1941, is not only unjust and unreasonable, but constitutes cruel and unusual punishment prohibited by. Section 8 of the Declaration of Rights of the Constitution of Florida. See: State ex rel. Davis v. Rose,97 Fla. 710, 122 So. 225; Amos v. Gunn, 84 Fla. 285 (text 364),94 So. 615; Kincaid v. Jackson, 66 Fla. 378, 63 So. 706; Baeumel v. State, 26 Fla. 71, 7 So. 371; Weems v. United States,217 U.S. 349, 30 Sup. Ct. 544, 54 L. Ed. 793; 16 C.J. 1358; 24 C.J.S. par. 1978-80, pp. 1187-1195; 15 Am. Jur. par. 523-536, pp. 171-179. The several provisions of Section 8 of the Declaration of Rightssupra are obligatory on the Legislative branch of our government as well as the Judicial. Section 562.32 supra prescribes a fine of not more than five thousand dollars or imprisonment for a term of not less than one year or more than five.

The Beverage Act may be classified as a revenue measure wherein excessive penalties are prescribed and designed to deter the manufacture of illicit whiskey and the placing of same on the market in competition with the sale of whiskey on which the tax has been paid to the State, thereby depriving the State of this revenue. While the Legislature has the power to enact legislation, it must do so within constitutional limitation. The practical effect and operation of the A8ct is to limit the consumption of lawful whiskey to that class of citizens financially able to buy and pay the high tax and prohibits the consumption to that class of citizens not financially able to buy it, and by the very terms of the Act they are unable to obtain whiskey and when found in possession of the beverage on which a tax is imposed, they ipso facto become felons.

The funds collected are appropriated: (1) to the payment of old age pensions; if a surplus exists thereafter, the same may be used (2) to assist the blind; (3) the needy children and (4) the residue placed to the credit of the county school fund. It is clear that few citizens, if any, would possess the temerity or the hardihood to resist or oppose the measure because of its humanitarian and philanthropic objectives, although many citizens are financially unable to purchase it and thereby resort to the use of contraband whiskey, which automatically makes them felons.

In construing similar provisions, many jurisdictions have held that the penalties imposed by a statute shall be in proportion to the nature of the offense and if the penalty is disproportionate to the offense, the Act is void. That cruel and unusual punishment may be applicable to the duration of the sentence imposed by the Act as well as to degree of punishment. Burning at the stake, breaking on the wheel, torture, the guillotine, solitary confinement, the rack, the thumbscrew, and the cross, generally, are admitted to be cruel punishments, but each had been abolished fifty or sixty years ago when our Declaration of Rights was adopted. If Section 8 thereofsupra is given force, stamina and virility, as intended, certainly it must apply to duration.

If a physician administers to his patient during an emergency a heart stimulant by the terms of the Act defined as a beverage, on which a tax is due and unpaid, or if the beverage is applied to a patient by a nurse in first aid treatment, or a simple glass of wine is handed by a host to his guest or by a neighbor given to a neighbor, or by a deacon transported to the Church to be used for sacramental purposes, then each becomes a felon and subject to a minimum sentence of one year in the State Prison. Liberty or freedom belong to those citizens who love and cherish it: who decline or refuse to surrender it but choose to fight and pay the highest price for its continued existence. It cannot be said that right and justice prevail when a citizen is condemned for a period of seven years under the provisions of this statute.