In re Robinson

75 So. 604, 73 Fla. 1068, 1917 Fla. LEXIS 547

• Court: Supreme Court of Florida
• Decided: May 14, 1917
• Status: Published

Opinions

Whitfield, J.

The following petition was presented to this court:

“Your petitioner, E. E. Robinson, of Jacksonville, Duval County, Florida, complaining says that he is unjustly and unlawfully imprisoned and restrained of his liberty by W. H. Dowling, Sheriff of Duval County, State of Florida, by virtue of a certain Capias ad Respondendum issued out of the Criminal Court of Record of Du-val County, Florida, a copy of which said Capias, marked Exhibit ‘A,’ is hereto attached and made a part hereof.

“Your petitioner would further show that the said Capias was issued upon an information filed in said Criminal Court of Record by F. W. Butler, the County Solicitor of said County, a copy of which said information is hereto attached, marked Exhibit ‘B’ and made a part hereof.

“Your petitioner would further show that his said im-' prisonment and restraint as aforesaid are 'unlawful for the following reasons, to-wit:

“i. Said Information does nbt charge any offense against your petitioner known to1 the Laws of the State of Florida.

“2. Said Information as framed is vague, .indefinite and uncertain.

“3. Said Information does not show that this defendant used or operated any automobile upon the public roads or highwajrs of said State.

“4. It does not appear by said Information for ^vhat year this defendant failed to pay the alleged county license tax.

“5. It does not appear by said Information what was the seating capacity of the alleged automobile or what was the license t^x required therefor.

“6. It does not appear from said Information when the alleged fifteen days’ operation took place and obviously such fifteen days’ operation could not have occurred on the day alleged in said Information.

“7. Said Information does not negative the procuring oí a license for the alleged automobile in some other county of said State.

“8. Chapter 6881 Laws of Florida, 1915, upon which said Information is based, is vague, and indefinite in that it does not specify when the license tax therein provided for shall be due and payable or when the same shall be regarded in default for the purposes of a criminal prosecution.

“9. It is not provided by said Act or by any other statute of the State of Florida that the owner of a privately used automobile shall first pay a license tax thereon as a condition precedent to the use thereof.

“?o. There is no prohibition contained in said Act or any other statute of the State of Florida against the use of a privately used automobile having procured a license therefor.

‘T1. The said Act is also vague and indefinite and insufficient to support the said criminal prosecution, in that it does not specifically provide that the owner of a motor driven vehicle used without charge shall pay a license tax thereon, and such requirement can only be arrived at, if at all, by inference, which is insufficient to support such criminal prosecution. .

“12. The said Act is also vague and indefinite, in that it does not specificalfy designate to which tax collector of the State of Florida a resident of Duval County using an automobile without charge shall pay the license tax .specified in said Act, nor does said Act in such a case indicate or specify which tax collector of the State of Florida would have the right by civil process, or otherwise, to collect such license tax.

“13. The title of said Act limits the requirements of a license for an automobile or other motor vehicle to such motor vehicles as are used upon the public roads or highways of the State of Florida, for which reason the body of said Act can be no broader in its application than said title and'the said prosecution cannot be maintained without alleging and proving that the automobile mentioned in said Information was used or operated upon the public roads or highways of said State.

“14. That the said Act is otherwise too vague, indefinite and uncertain to sustain said criminal prosecution brought against your petitioner.

“Your petitioner would further show that something over one thousand similar prosecutions have been brought by said County Solicitor against citizens of Du-val County, and the said prosecutions are now pending in the Criminal Court of Record of said County. That a similar prosecution was brought against one Joseph H. Phillips, copy of the capias and information issued and filed against the said Phillips being hereto attached and marked respectively ‘C’ and ‘D’ and made a part hereof. That on April 14th, 1917, the said Joseph PI. Phillips applied to one of the Judges of the Fourth Judicial Circuit in and for Duval County, Florida, for Writ of Habeas Corpus setting forth the objections similar to those hereinbefore pointed out. ' That after hearing the argument and considering the petition of the said Joseph H. Phillips and the sheriff’s return thereto, the Judge of said Circuit Court did remand the said Joseph PI. Phillips to the custody of said sheriff. That the matter involved in this petition is of great public importance not only to citizens of Duval County charged as aforesaid, but of wide interest to citizens throughout the State of Florida. That on account of the adverse ruling- of said Circuit Judge your petitioner is without remedy in the premises save by application to this Honorable Court.”

The information referred to as Exhibit “B” is as follows :

“In the Criminal Court of Record, of the County of Duval and State of Florida, February Term in the year of our Lord one thousand nine hundred and seventeen.

“State of Florida

vs.

“E. E. Robinson.

“Information for Non-payment Automobile License.

■ “In the Name and by the Authority of the State of of Florida:

“Frederick W. Butler, County Solicitor for the County of Duval, prosecuting- for the State of Florida in the said County, under oath, information makes that E. E. Robinson of the County of Duval and State of Florida, on the 2nd day of April in the year, of our Lord, one thousand nine hundred and seventeen in the County and State aforesaid, being the pwner of á certain automobile and other motor driven vehicle, did use and operate the same in said State and County more than fifteen days; without paying the county License Tax required by law; said automobile and motor driven vehicle not being used and operated for hire and charge.”

A writ of habeas corpus was issued by the Chief-Justice of this Court and the following return was made:

“Comes now W. H. Dowling, Sheriff of Duval Count)'',.Florida, and waives the service upon him for writ of Habeas Corpus in the above entitled cause issued or to be issued upon the petition of said E. E. Robinson, and for return thereto says: that he does have in his custody, as such Sheriff, the petitioner E. E. Robinson, and that he holds the said E. E. Robinson by virtue of a certain capias issued out of the Criminal Court of Record in and for Duval County, Florida, copy of which said capias is attached to said petition and marked Exhibit ‘A’ thereto.

“And for further return says that the said capias was issued upon an Information filed by the County Solicitor of said Duval County against the said petitioner, copy of which said Information is attached to the said petition and marked Exhibit ‘B’ thereto ; that the said proceeding, including said capias and said information, constitutes the warrant and authority under and by which the undersigned, as Sheriff as aforesaid, holds and restrains the said petitioner of his liberty.

“And this respondent making further return to said Writ prays that the said petitioner may be remanded to his custody as such sheriff.”

Chapter 6881 Acts of 1915', is as follows:

“An Act to Amend Chapter 6212 of the Acts of the Legislature of 1911, Same Being Entitled ‘An Act to License Automobiles and Other Motor Driven Vehicles Using the Public Roads or Highways in the State of Flordia, Either for Hire or Otherwise.’

“Be it Enacted by the Legislature of the State of Florida :

“That Chapter 6212 of the Laws of Florida, Acts of the Legislature of 1911, entitled ‘An Act to License automobiles and other motor driven vehicles using the public roads or highways in the State of Florida either for hire or otherwise’ be and the same is hereby amended to read as follows:

“Sec. 1. The ower or operator of every automobile and other motor driven vehicle operating in this State more than fifteen days when used for hire, charter, or when charge is made for use thereof in any manner or form whatsoever, shall pay annually to the tax collector of the several counties of this State a county license tax as follows:

“For any automobile and other motor-driven vehicle with a seating capacity of—■

“One and not more than two persons, ten dollars.

“Three and not more than five persons, twenty dollars.

“Six 'and not more than ten persons, thirty dollars.

“Eleven and not more than twenty persons, forty dollars.

“Twenty-one or more persons, sixty dollars.

“Auto Trucks of one thousand pounds capacity or less, fifteen dollars.

“Auto trucks of more than one thousand pounds capacity, and not more than two thousand pounds capacity, thirty dollars.

“Auto Trucks of more than two thousand pounds capacity and not more than three thousand pounds capacity, forty dollars.

“Auto Trucks of more than three thousand pounds capacity and not more than five thousand pounds capacity, fifty dollars.

“Auto trucks of more than five thousand pounds capacity, sixty dollars.

“When any automobile and other motor-driven vehicles are used by the owner thereof, are without charge, the annual license tax will be as follows:

“For any automobile and other motor-driven vehicle with a seating capacity —

“Of one and not more than two persons, three dollars.

“Of three and not more than five persons, five dollars.

“Of six and not more than ten persons, ten dollars.

“Of eleven and not more than twenty persons, fifteen dollars.

“Of twenty-one or more persons, twenty-five dollars.

. “Auto Trucks of one thousand pounds capacity or less, ten dollars.

■ “Auto Trucks of more than one thousand pounds capacity and not more than two thousand pounds capacity, twenty dollars.

“Auto Trucks of more than two thousand pounds capacity and not more than three thousand,, pounds capacity, thirty dollars.

“Auto Trucks of more than three thousand pounds capacity and not more than five thousand pounds capacity, forty dollars.

“Auto Trucks of more than five thousand pounds capacity, fifty dollars.

“All motor cycles shall pay a license tax of two dollars.

“The payment of one such county license tax in the State of Florida shall exempt the owner or operator from the payment of any other such county or State license tax during ■ the license year. Upon the payment of ' such county license tax the owner or operator shall be given an appropriately numbered metal tag with the name of the county and the year for which said county license tax is paid indicated thereon whether for hire or owner’s use, which said tag shall be kept in plain view on such automobile or other motor driven vehicle. All persons desiring to procure said license as herein provided for shall make application to the County Tax Collector of the several counties upon blank to be furnished by the County Tax Collector showing the essential facts for the procurement of such license, which said metallic tags and blank forms shall be furnished the County Tax Collectors of the several counties by the County Commission of the several counties.

“Sec. 2. All monies derived from the payment of such license tax shall be paid into the road and bridge funds of the several 'counties.

“Sec. 3. Any person or persons, firm or association that shall fail to comply with the provisions of this Act shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than' double the amount required for such license or imprisonment not exceeding six months.

“Sec. 4. This Act shall take effect on October first, 1915. Approved June 4, 1915.”

The original Act of 1911, was held to be constitutional in Jackson v. Neff, 64 Fla. 326, 60 South. Rep. 350.

The language and purpose of the statute clearly require the payment of the license tax before an automobile is operated on the public highways more than fifteen days, and the failure to make'such payment is made a public offense.

Habeas corpus is not a remedy for relief against indictments charging criminal offenses defectively or in-artificially, though it seems to be a remedy where an indictment charges as an offense an act which, at the time of its commission, the law did not make criminal. In the former case the detention of the accused is not without jurisdiction, though in the latter it is held to be so on the ground that there is no law punishing the act. Ex parte Prince, 27 Fla. 196, 9 South. Rep. 659.

Where habeas corpus is invoked to- obtain the discharge of a person held in custody to ^answer a charge of crime, it must be shown that the statute under which the charge is made is invalid or that the charge as made is not merely defective in its allegations, but wholly fails to state any offense under the laws of the State. The xyrit of habeas corpus cannot be used as a substitute for a motion to quash or a writ of error or an appeal. See Mooneyham v. Bowles, 72 Fla. 259, 72 South. Rep. 931; Hardee v. Brown, 56 Fla. 377, 47 South. Rep. 834; Butler v. Perry, 67 Fla. 405, 66 South. Rep. 150; McGriff v. State, 66 Fla. 335, 63 South. Rep. 725; Ex parte Bowen, 25 Fla. 214, 6 South. Rep. 65; In re Coy, 127 U. S. 731, 8 Sup. Ct. Rep. 1263. Some authorities hold that where an essential ingredient of an offense intended to be charged is omitted from the indictment, the writ of habeas corpus is the proper remedy for relief from imprisonment under it; but the true rule seems to be that it is onfy where the facts stated in the indictment are not and cannot be so stated as to charg'e an offense that the prisoner may be discharged, and where the matters are of such a character that the indictment, though defective for lack of a statement of an essential ingredient of the offense, may be perfected into a sufficient áccusation of crime, the prisoner should be held to abide the judgment or order of the court. Bergemann v. Backer, 157 U. S. 655, 15 Sup. Ct. Rep. 727; Ex parte Prince, 27 Fla. 196, 9 South. Rep. 659; United States v. Davis, 18 App. Cas. (D. C.) 280; 15 Am. & Eng. Ency. Law (2nd Ed.) 164.

Where an indictment, information or complaint, though inartificially drawn, shows an evident attempt to state the essential facts which constitute the crime sought to be charged, a defect in the statement will not warrant the discharge of the defendant on habeas corpus. To hold otherwise would be not only to adapt the writ to the ordinary uses of a proceeding in error, but to warrant, by its means, intolerable interference with the ordinary and regular process of criminal prosecutions, and to substitute the writ for a demurrer or motion to quash, which the law will not permit. The enquiry in such case is not whether there is 'in the indictment such specific allegations of the details of the charge as would malee it good on demurrer or motion to quash, but whether the indictment describes a class of offenses of which the court has jurisdiction, and alleges the defendant to be guilty. If, however, an indictment, information or complaint is void, a trial thereon is also void and the prisoner is entitled to be discharged on habeas corpus. 12 R. C. L. pp. 1202-3. Note to Cribbs v. Kynoch, 11 Ann. Cas. 104; In re Coy, 127 U. S. 731, 8 Sup. Ct. Rep. 1263; State ex rel. Gardner v. Shrader, 73 Neb. 618, 103 N. W. Rep. 276, 119 Am. St. Rep. 913.

The right to attack an information by the writ of habeas corpus is more limited than is permitted in motions to quash and in arrest, and may avail only when the offense charged does not constitute a crime under the laws of the State, by reason of the unconstitutionality of the statute invoked or when there is a total failure to allege a crime under any statute; inartificiality in pleading will not avail. Jackson v. State, 71 Fla. 342, 71 South. Rep. 332.

In Thorp v. Smith, 64 Fla. 154, 59 South. Rep. 193, a judgment of the Circuit Court remanding the petitioners was reversed because the indictment alleged the offense to have been committed before the statute defining the offense became effective to make the act a crime.

In Lewis v. Nelson, 62 Fla. 71, 56 South. Rep. 436, the Circuit Judge in whose court the charge was to be tried discharged the person held in custody and as “no offense under, the statute was charged in 'the warrant/’ under which* the petitioner was held, the judgment discharging the accused was affirmed. In presenting the matter to the trial court by habeas corpus rather than by motion to quash the procedure did not affect his jurisdiction and gave finality to’ the judgment for a writ of error. Here the writ is from this court and the trial court has not passed on the sufficiency of the information which is in the language of the statute, though not in the language of the title to the statute; and the information indicates the nature and cause of the accusation and cannot mislead or embarrass the accused in making his defense. Sections 3961, 3962, Gen. Stats. 1906; Barineau v. State, 71 Fla. 598, 72 South. Rep. 179; Strobhar v. State, 55 Fla. 167, 47 South. Rep. 4.

The information alleges that the petitioner being the owner of a certain automobile did use and operate the same in the said State and county more than fifteen daj^s without paying the county license required by law. The statute requires “the owner of every automobile * * * operating in this State more than fifteen days” to pay a stated license tax. The information clearly indicates the use and operation of the automobile in the manner contemplated by the statute and the defendant is obviously apprised of “the nature and cause of the accusation against him,” as is required by section 11 Declaration of Rights of the State Constitution. See Brass v. State, 45 Fla. 1, 34 South. Rep. 307; Ladson v. State, 56 Fla. 54, 47 South. Rep. 517; Clark v. State, 59 Fla. 9, 52 South. Rep. 518; Taylor v. State, 67 Fla. 127, 64 South. Rep. 454; Johnson v. State, 58 Fla. 68, 50 South. Rep. 529; Lewis v. State, 55 Fla. 54, 45 South. Rep. 998; Robinson v. State, 69 Fla. 521, 68 South. Rep. 649.

The meaning and legal import of the information appear to be clear and certain. The gravamen of the offense is the operation of an automobile without paying the license tax required by law. Under the allegation of operation without paying the license required by law, the circumstances of such operation may be shown.

In Ex parte Bailey, 39 Fla. 734, 23 South. Rep. 552, the charge was not covered by any provision of the statute. Ex parte Knight, 52 Fla. 143, 42 South. Rep. 714 (unconstitutional statute); Ex parte Hays, 25 Fla. 279, 6 South. Rep. 64. In the latter case a jurisdictional fact was not alleged in a special statutory proceeding.

In this case the statute authorizes a criminal prosecution for failure to pay the required license tax for, operating an automobile on the public roads, and the information manifestly is brought under the statute. If the information is defective because it does not allege that the defendant’s'automobile was operated upon the public highways of the county, such defect would not render a proper conviction under it illegal or void even though it may be erroneous. The defect in the information if regarded as material may be. reached by motion to quash and the ruling on such motion may be reviewed on writ of error after conviction. As the statute is valid and the information does not wholly fail to charge the commission of an offense under the statute, the writ of habeas corpus is not applicable and the petitioner should be remanded. Other criticisms of the information and the statute are .not material in this proceeding as they do not render the prosecution void or illegal, or affect the jurisdiction of the court.

The petitioner will be remanded.

Taylor and Shackleford, JJ., concur.

Browne, C. J., and Ellis, J., dissent.