Reffkin v. Boyce

Whitfield, P. J. —John Reffkin, alias J. W. Chase, was indicted under Chapter 8466, Acts of 1921, Sections 7308 to 7310, and being held in custody sought a discharge on habeas corpus upon the ground that the statute is invalid and that the indictment does not charge a criminal offense under the laws of the State. The petitioner was remanded and obtained a writ of error. Sections 1 and 2 of the act provide: “It shall be unlawful for any person or persons to defraud or attempt to defraud any individual or individuals out of any thing of value, by assuming to have or be able to obtain any secret, advance or inside information regarding, any person, transaction, act or thing, whether such person, transaction, act or thing exists o'r not.” Section 7308, C. G. L., 1927. “Any person or persons guilty of violating the provisions of section 7308 shall be deemed guilty of a felony *223 and, upon conviction thereof, shall be fined not more than ten thousand dollars and ten years in the State penitentiary.” Section 7309, O. G. L., 1927. The indictment charges: “That G. L. Robinson, J. ~W. Chase and Fred Havner late of the County of St. Johns aforesaid, in the Circuit and State aforesaid, laborer, on the 13th day of February, in the year of our Lord One thousand nine hundred and twenty-nine, with force of arms and in the County of St. Johns aforesaid, did unlawfully and feloniously defraud one J. D. Sinclair out of something of value, to-wit, forty Thousand ($40,000.00) dollars, lawful money, the currency of the United States of America, of the property goods and chattels of the said J. D. Sin-, clair, a better description of said money being to the Grand Jurors unknown, by assuming to have and to be able to obtain inside information regarding a certain horse race; and that J. W. Chase and Fred Havner of the County of St. Johns and State of Florida were then and there at the commission of the said felony, feloniously present, aiding, inciting, and abetting the said G. L. Robinson, the said felony in manner and form aforesaid to do and commit.” Even if Section 2 of the act was so indefinite as to be inoperative there may be a conviction under Section 1 without reference to' the penalty stated in Section 2. But the second section is intended to prescribe and does sufficiently prescribe as a penalty for violating Section 1 of the act, a fine of not more than ten thousand dollars and imprisonment for not more than ten years in the State penitentiary. The act is not inoperative for uncertainty oh indefiniteness. The indictment does not wholly fail to charge an offense under the law and habeas corpus is not available. Johnson v. State, 81 Fla. 783, 89 So. 114; In re Robinson, 73 Fla. 1068, 75 So. 604; Spooner v. Curtis, 85 Fla. 408, 96 So. 836; Griswold v. State, 77 Fla. 505, 82 So. 44; Esparte Prince, 27 Fla. 196, 9 So. 659. Affirmed. *224 Terrell and Davis, J.J., concur. Buford, C.J.. and Ellis and Brown, J.J., concur in the opinion and judgment.