JOHN JOINER, PLAINTIFF IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

The plaintiff in error was convicted of the offense of a second violation of the prohibition law relating to the unlawful possession of intoxicating liquors, and sentenced to pay a fine of $200.00 and one year’s imprisonment at hard labor in the State prison. To the judgment of conviction he took writ of error. As chapter 9266 of the laws of 1923 has been recently held unconstitutional (Porter v. State, decided at the January term, 1926) this prosecution will be deemed to have been conducted under section 5486 of the Revised General Statutes, 1920, which the void act sought to amend.

The contention of plaintiff in error that the indictment, as to the allegation of previous conviction, is defective, in that the alleged conviction was, “for the offense of possess ing alcoholic liquors,” without charging that such possession was unlawful, is correct. This is such a fundamental error as would require consideration by the court without any assignment of error. Gunn v. State, 78 Fla. 599, 83 South. Rep. 511. The same question is involved in one of the rulings on the evidence.

As our statutes on the subject make possession of alcoholic or intoxicating liquors under certain circumstances and for certain purposes legal, an indictment or information merely charging possession of such liquors is insufficient. While the better practice would probably require the charging of possession for sale, or for some other unlawful purpose, we have recently held that in this particular, an information charging the defendant in general terms with “unlawful possession” will be deemed sufficient. It is fundamental that, to be of any legal force, an indictment or other criminal accusation upon which a prosecution is founded, must charge a criminal offense. It is not necessary -to expressly negative exceptions allowed by the statutes, but this does not relieve the prosecutor of the duty to so frame his charge as to show on its face a criminal offense. Under an indictment merely charging possession of alcoholic liquors, an ordained minister, having wine in his possession for sacramental purposes, or a licensed druggist possessing alcohol for medical purposes, could be found guilty of the supposed offense as charged. Of course, when it comes to providing the charge of unlawful possession the statutory prima facie evidence rule, that evidence of mere possession by the accused of intoxicating liquors raises the presumption of unlawful acquirement and possession, applies. See Chapter 9267, Acts of 1923. But this rule of evidence was not intended and does not purport to change the fundamental and universally recognized principles of pleading in criminal eases. The legislature is well within its rights in providing in effect that when a person is accused of unlawful possession of intoxicating liquors, and on the trial, the prosecution proves possession, this shall be prima facie evidence of unlawful possession, throwing the burden of proof upon the accused to show if he can that such possession is lawful. If he cannot, or does not, do this as required by the statute, then such proof of possession alone is sufficient to sustain the charge. A familiar illustration might be mentioned.

Under the statute, proof of injury by the running of a railroad train raises the presumption of negligence, and if suit be brought, the plaintiff need only prove that he was injured by the running of the defendant’s train and the damage to him arising therefrom. This makes out a prima facie case, and casts on the defendant the burden of proving in effect that it was free from negligence causing the injury. But this rule of evidence does not relieve the plaintiff of the necesity of charging in his declaration that the injury was caused by the defendant’s negligence. All this is simple enough, if the rules of evidence and those of pleading — substantive law and adjective law — are not confused.

The court therefore erred in permitting the State, over the defendant’s objection, to introduce in evidence the bench docket of the County Court as evidence of the previous conviction. This docket only showed the alleged offense in these words: ‘' Having in his possession, custody and control some alcoholic and intoxicating liquor. ’ ’ While the indictment itself only charged a previous conviction in said county court “for the offense of possessing alcoholic liquors, ’ ’ this allegation, as we have seen, was not legally sufficient.

But the admission of this bench docket as evidence of the previous conviction was erroneous for another reason. Sec tion 3331, Revised General Statutes, 1920, requires the Clerk of the County Court to keep a minute book, as well as a bench docket, in the same manner as for Circuit Courts. The general rule is well settled that the best evidence reasonably obtainable, and which the nature of the case admits of, must always be adduced, unless some good reason is shown for failure to do so, which will in some eases make secondary evidence admissible. Simpson’s Admr. v. Barnard, 5 Fla. 528; Gordon v. State, 86 Fla. 255, 97 South. Rep.

428. And this court has laid down the rule that in prosecution for a second offense of violation of the prohibitive laws, it is necessary for the State, in proof of the charge of previous conviction, to produce the complete record of the judgment of conviction. Norwood v. State, 80 Fla. 613, 86 South. Rep. 506; Gordon v. State, supra. No reason was shown in this case why the minute book in which the judgments of the court are supposed to, and should be, recorded, was not introduced, so as to show “the whole record of the judgment of conviction.” See generally 22 C. J. 797, 816.

The proof of the judgment of the prior conviction is necessary to sustain the conviction of the accused as a second offender, and the penitentiary sentence provided in such eases. State ex rel. Loskmiller v. Mayo, 88 Fla. 96, 101 South. Rep.

228. Where that portion of the information of indictment charging a second offense, which is a felony, is defective, and may be regarded as surplusage, leaving a sufficient charge of a first offense, which is a misdemeanor, of which the court has jurisdiction, and the verdict is guilty as charged, and the sentence is within the penalty for a misdemeanor, the trial and conviction will be regarded as for a misdemeanor, and not a felony. Best v. State, Fla., 107 South. Rep.

638. But such is not the case here, where the punishment imposed was that applicable to the felony charge.

Reversed.

Strum, J., concurs;

Ellis, J., concurs in the conclusion;

Whitfield, P. J., and Terrell, J., concur in the opinion.

Buford, J., disqualified.