JOHN BENSON, PLAINTIFF IN ERROR,
v.
STATE OF FLORIDA, DEFENDANT IN ERROR
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John Benson was convicted as a second offender for unlawfully possessing intoxicating liquor, but the Florida Supreme Court reversed because the indictment failed to allege that the possession was for sale, which is essential for a second-offender charge under the 1923 liquor law.
The indictment was defective because it failed to allege that the liquor was possessed for sale, which is essential when prosecuting a second-offender violation. The motion to quash should have been granted. Additionally, when prosecuting as a second offender, it is safer practice, if not essential, that the jury expressly find the historical fact of a former conviction as alleged.
“As the defendant was indicted as a second offender under the act of the Legislature above referred to the allegation of the second offense for which he was tried should have been that he had the liquor in his possession for sale.”
Establishes that second-offender liquor charges must allege possession for sale, not mere possession
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Ellis, J.
John Benson was indicted in two counts for unlawfull having in his possession a certain quantity of intoxicating liquors as second offender and for unlawfully transporting such liquors as a second offender. The verdict was: “We the jury find the defendant guilty of first count, so say we all.” Upon that verdict the greater penalty provided by Chapter 9266 Laws of Florida, 1923, was imposed. The sentence being imprison ment in the State penitentiary for one year at hard labor and the payment of a fine of one hundred dollars.
There was a motion to quash the indictment which was overruled.
The motion should have been granted. As the defendant was indicted as a second offender under the act of the Legislature above referred to the allegation of the second offense for which he was tried should have been that he had the liquor in his possession for sale. See State ex rel. Lockmiller v. Mayo, decided at the present term of the Court.
When a person is indicted and tried for a violation of the intoxicating liquor law as a second offender it is the safer practice, if not indeed essential, that the jury should expressly find the historical fact of a former conviction as alleged.
If the charge is the unlawful possession of intoxicating liquor for sale and that the defendant had prior thereto been convicted of a violation of the laws against the unlawful manufacture, sale, possession and transportation of intoxicating liquor and upon said conviction, had imposed upon him the judgment and sentence of the said court, the burden is upon the State under the plea of not guilty not only to establish the allegation of possession of the liquor for sale but that the former conviction was either for the manufacture, sale, possession for sale or transportation for sale, and to establish the identity of the defendant as the identical person who was convicted in the former case.
Whether a verdict of guilty is responsive to the allegations of the indictment as to the prior conviction is doubtful.
Reversed upon authority of State ex rel. Lockmiller v. Mayo, supra, and Dupree v. State, decided at present term. Judgment reversed..
Taylor, O. J. and Browne, J., Concur. Whitfield, P. J. and West and Terrell, J. J. Concur in the opinion.,
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Citator
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Hart v. State, 89 Fla. 202 (Fla. 1925)…liquor law, to-wit: Transporting intoxicating liquor. ’ ’ Under the decisions of this court, the indictment failed to charge a second offense of the prohibition laws in Florida. Lockmiller v. Mayo, 88 Fla. 96, 101 South. Rep. 228;. Benson v. State, 88 Fla. 103, 101 South. Rep. 231. We have fully discussed the questions raised by the assignments of error; (1) the power of the municipal judge to issue search warrants; (2) the right to introduce in evidence against a defendant, articles wrongfully taken fro…
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Langford v. State, 111 Fla. 506 (Fla. 1933)…s that the verdict was not responsive to the indictment and in this we must agree with consel for plaintiff in error. As has been heretofore stated by this Court (see State, ex rel., Lockmiller v. Mayo, 88 Fla. 96, 101 Sou. 228, and Benson v. State, 88 Fla. 103, 101 Sou. 231), whether or not the defendant is guilty of the offense of unlawfully selling intoxicating liquor is one question which the jury must determine, and after determining that question, it is necessary for the jury to determine the jurisdi…
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Barnhill v. State, 41 So. 2d 329 (Fla. 1949)…state. * * * A verdict of `guilty' in such a case where penalties for a second or third offense are invoked is regarded as not responsive to the allegations of the indictment or information." The next case was that of Benson v. State, 88 Fla. 103, 101 So. 231, also decided in 1924 and released the same day as the Lockmiller case. The record on appeal shows that Benson was indicted in two counts for unlawfully having in his possession a certain quantity of intoxicating liquors as a second offender and for…1 / 2
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