State, Ex Rel. v. Stone , 128 Fla. 637 ( 1937 )

Unless the information wholly fails to charge an offense, it will be upheld on habeas corpus. This writ cannot take the place of a motion to quash. Furthermore, this information charges that the officer was a deputy sheriff and a police officer. This being charged in the conjunctive, the information does charge that the officer was a deputy sheriff and no conviction could be had thereunder unless this was proved. If the charge had been in the alternative, or disjunctive, then the rule referred to, of testing the charge by the weaker averment, might apply. See Strobhar v. State, 55 Fla. 167, 47 So. 4; 31 C.J. 663-4. The clause in the information "and a policeman of the City of Ormond" might well be held to be mere surplusage, which could be rejected on motion in the Circuit Court, and yet leave a valid information. Mathis, vs. State, 70 Fla. 194, 69 So. 697.