(dissenting).—The decision in this case is predicated on the doctrine of Ex Parte Prince, 27 Fla. 196, 9 South. Rep. 659, that “Habeas Corpus is not a remedy for relief against indictments charging criminal offenses defectively or inartificially.” I quite agree with this proposition, but I cannot see wherein the offense is charged “defectively or in-artificially.” On the contrary, if “being the owner of an automobile and other motor driven vehicle, and using and operating same in the County of Duval and State of Florida more than fifteen days, without paying the county license tax required by law, the automobile and other motor' driven vehicle not being used and operated for hire and charge,” as alleged in the information, is a criminal offense under the laws of Florida, the information states it clearly and unequivocally, and not “defectively or in-artificially.” The offense so charged is not an offense under the laws of Florida, and the information “wholly fails to allege a crime.” It is no offense under the laws of Florida for the owner of an automobile or other motor driven vehicle to use or operate the same in Duval •County, Florida, more than fifteen days without paying a license; but only when he uses it upon the “public roads or highways in the State.” As long as he uses or operates same on a private road, or on private lands, he is not required to obtain a license, and he is not guilty of any offense known to the laws of Florida. Thus, the owner of property bounded by the waters of the ocean, may operate automobiles or other motor driven vehicles not fftr hire, on the beach in front of or on his property, without paying a license.
The facts stated in this information “are not and cannot be so stated as to charge an offense.” The most in*1083genious. rhetorical', legal, or literary statement of all the facts contained in this information will not and cannot state an offense known to bhe laws of Florida.
I cannot concur in the doctrine laid down in this case, that “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 accusation of crime, the prisoner should be held to abide the judgment or order of the court.” It is true that this proposition is found in an article in t 5 Am. & Eng. Ency. Law (2nd Ed.) 164, written by one Charles Porterfield, and the authorities given in support thereof are cited in this opinion, but an examination of them discloses that they do not support the doctrine. If one “essential ingredient of an offense” may be omitted from an indictment, several, or all such ingredients may likewise. be omitted, and the only question then which a court would have to decide when such an indictment is attacked on habeas corpus would be whether an information which wholly fails to allege an offense could by redrafting be made to state one. 'This is the irresistible logic of the proposition laid down in this case, and if this is the law, it reverses the doctrine heretofore enunciated by this court in Ex Parte Prince, 27 Fla. 196, 9 South. Rep. 659, and in Lewis v. Nelson, 62 Fla. 71, 56 South. Rep. 436, that an indictment which wholly fails to allege a crime, may be successfully attacked by habeas, corpus.
There is 'a marked difference between the title and the body of the act the defendant is charged with having violated. The title reads: “An Act to Amend Chanter 6212 of the Acts of the Legislature of i'qii, Same Being Entitled ‘An Act to License Automobiles and Other *1084Motor Driven Vehicles Using the Public Roads or Highways in the State of Florida, Either for Hire or Otherwise.’ ”
Section i reads: “The owner 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 therof 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
The title restricts the power to license automobiles and other motor driven vehicles to those “using the public roads or highways,” while Section i broadens the power so as to include every use to which an automobile or motor driven vehicle may be put, including- its use on roads on private estates and farms. The title is very limited—the act is very much broader. The title limits the provisions of the statute to a particular class, the act broadens them to include all classes. Shortly after its passage its constitutionality was challenged, but it was upheld in the case of Jackson v. Neff, 64 Fla. 326, 60 South. Rep. 350. It does not appear that the act was challenged on the ground that the act was broader than its title. The only theory upon which its constitutionality upon this ground could be sustained, is that the title being a part of the act, the words of limitation in the title— “using the public roads or highways”—are a part of, and included in Section 1. If this is so—and it must be so, if the act is constitutional, I fail to see that this information charges the offense in “substantially the language of the statute.” If we so hold, we willl be led into the contradictory attitude of saying in the one case, that the act is constitutional because the words “using the public *1085roads or highways” are part oí the language of the statute, and in the other, that this information is good, because it charg-es the offense in the words of the statute, notwithstanding the words “using the public roads or highways” are not found therein. In effect we would say, “They are in the statute for the purpose of declaring it constitutional, but they are not in it for the purpose of declaring this information good.”
In the case of Lewis v. Nelson, 62 Fla. 71, 56 South. Rep. 436, the prisoner was held only by virtue of a warrant issued by a justice of the peace. No indictment or information had been filed ag'ainst him. The charge was that he, “feloniously devising' and intending' to injure and defraud the Geneva Lumber Company, a corporation, did by false promise to perform labor for said corporation, and with intent to injure and defraud said corporation, obtain from said corporation the sum of fifteen dollars lawful money, by then and there falsely promising to begin work for said corporation on the 2nd day of June, A. D. 1911, and to continue to work for said corporation until said sum of fifteen dollars was repaid in full; which said promises were wholly false and untrue and were known to be false and úntrue by the said Nero Nelson at the time they were made.” The warrant did not charge that he “abandoned the service of the hirer without just cause without first repaying the money or paying for the personal property obtained.” Mr. Justice Whitfield, who delivered the opinion- of the court, said this was “an essential element of the offense, and by reason of its omission from the warrant, there was no offense charged.” The warrant in that case was as susceptible of being perfected info a sufficient accusation of crime, as the information in the instant case. In each, an “essential element” of the offense was omitted. In the one, it was *1086held fatally defective, and that habeas corpus would lie. In the instant case, the omission of an “essential element” of the offense is said not to be fatally defective, and that habeas corpus will not -lie.
The reasoning in this case applies with full force to the warrant which was held to be fatally defective in Lewis v. Nelson case, and I cannot see how the conclusion reached in these cases can be reconciled.
The true test of the sufficiency of an indictment'is, if the accused had done all things charged and yet be guiltless, the indictment is fatally bad. The principle involved in this case is not new, but its application to automobiles is comparatively recent. Berry in his work on Automobiles (2nd Ed) p. 976, says: “Where an offense consists of the violation of ‘an act governing the use of automobiles upon the public highways,’ an indictment omitting to aver that the defendant used or operated his automobile upon a public highway, charged no offense.”
In the case of State v. Hall, 64 Wash. 99, 116 Pac. Rep. 593, the defendant was convicted under a statute which provided that “Every person who shall drive or operate * * * any automobile or motor vehicle * * * upon any public road, highway, park or parkway, street or avenue, at any unsafe or unreasonable rate of speed, having proper regard to the safety of any other person or persons using the same, shall be guilty of a misdemeanor.” The court in its decision said: “It will be observed that the respondent is not charged with driving the automobile at ap unlawful speed upon any public road, highway, park, or parkway, street, or avenue, but the information charges hipi only with so driving in Marysville, in Snohomish county, State of Washington. Subdivision 3, Sec. 2531, provides that such person shall not drive his *1087automobile at any other place than the place mentioned at a rate of speed faster than one mile in 2minutes. This would be at the rate of 24 miles an hour. So that there is a place where the automobile could be driven at a faster rate of speed than the rate mentioned in the information, without violating the law. The place where this driving was doné may have been in a private inclosure, and if so, the rate of 20 miles an hour would have been a lawful rate.
“It is true that pleadings in a justice court should be very liberally construed. At the same time there must be a crime charged, and, if the information shows on its face that the defendant might have done the thing or things charged in the information and yet have been guiltless of a crime, he ought not to be put upon his trial.”
In Ex Parte Worthington, 21 Cal. App. 497, 132 Pac. Rep 82, the court thus lays down the rule: “An indictment for violation of an act, entitled, ‘An Act governing the use of automobiles on public highways” not averring that the defendant used or operated his automobile upon a public highway, failed to .charge an offense.” This, like the instant case, was for violation of a law which provided among other things for automobile licenses, and the sufficiency of the indictment was tested by Habeas Corp.us. ■ .
As there are places where a motor driven vehicle may be operated without the payment of a license, to-wit, on private roads, in and about farms and in doing farm work, or on ocean beaches, the place where such vehicles were operated is an “essential element of the offense, and by reason of its omission from the ‘information’ there was no offense charged.” On the authority of Lewis v. Nelson, 62 Fla. 71, 56 South. Rep. 436, the very language *1088of which I quote in this sentence, I think the prayer of the writ should have been granted and the prisoner discharged.