State Ex Rel. v. Love , 143 Fla. 883 ( 1940 )

In a petition for a writ of prohibition it is in effect alleged that in the Circuit Court for Leon County a motion to quash several informations charging criminal offenses, filed under the statute predicated upon matters in pais, was overruled by the trial court when it should have been sustained to establish immunity of the petitioner from prosecution under the statutes of the State. The petition for writ of prohibition is signed by the petitioner and his counsel. The petition is not sworn to by petitioner but is sworn to by counsel "to the best of his knowledge and belief." The copy of the motion to quash attached to the petition filed here indicates that it was signed by counsel and sworn to by counsel on "the best of his knowledge, information and belief." The motion to quash does not purport to have been signed or sworn to by the defendant.

The Criminal Practice Act, Section 138, Chapter 19554, Acts of 1939, in effect requires the use of a motion to quash an indictment or information charging a criminal offense instead of a plea as theretofore; and such a motion to quash based upon matters in pais of which the defendant has personal knowledge should be duly sworn to by the defendant. The law does not contemplate that immunity from criminal prosecution may be established or that the jurisdiction of a court of record to try criminal cases may be ousted upon allegations of matters in pais signed by counsel and sworn to on information and belief, not signed and not sworn to by the defendant, when such allegations relate to matters within the knowledge of the defendant and not within the knowledge of counsel.

The trial court was justified in overruling the motion to quash. It was not properly authenticated to establish immunity of the defendant from prosecution for crime or to challenge the jurisdiction of the court to proceed with trials on the information referred to in the motion to quash. As formerly in pleas now allegations of fact in motion to quash indictments and informations charging criminal offenses on grounds that are predicated upon matters in pais, may be traversed and appropriate proceedings had thereon. In State ex rel. v. Petteway, 121 Fla. 822, 164 So. 872, cited for petitioner, the pleas were properly signed and duly sworn to by defendant-petitioner. The demurrer is sustained and the petition for writ of prohibition is dismissed.

TERRELL, C. J., and WHITFIELD, BROWN CHAPMAN and THOMAS, J. J., concur.

BUFORD, J., concurs specially.