Skipper v. Schumacher

• Decision Date: 23 March 1935
• Court: Florida Supreme Court
• Parties: SKIPPER v. SCHUMACHER, Sheriff.

160 So. 357

118 Fla. 867

SKIPPER v. SCHUMACHER, Sheriff.

Florida Supreme Court, Division A.

March 23, 1935

Rehearing Denied April 10, 1935.

Error to Circuit Court, Highlands County; W. J. Barker, Judge.

Habeas corpus proceeding by C. A. Skipper against Doyle Schumacher as Sheriff of Highlands County. To review an adverse judgment, petitioner brings error.

Affirmed.

COUNSEL W. D. Bell, of Arcadia, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for defendant in error.

OPINION

DAVIS Justice.

C. A Skipper, as petitioner below, was denied a writ of habeas corpus, and prosecutes this writ of error from the final judgment of the circuit court refusing to issue the writ of habeas corpus applied for and refusing to allow a writ of error to the judgment complained of. The writ of error now before us was allowed by the Chief Justice of the Supreme Court pursuant to section 5444, Comp. Gen Laws, section 3580, Rev. Gen. St., in order that the controversy here involved might be presented for review, the question of law implied in the ruling of the circuit court not having been heretofore adjudicated in this state.

The petition for habeas corpus, omitting the exhibits attached to it, was as follows:

'To Honorable W. J. Barker, Judge of the Above Named Court:

'Your petitioner C. A. Skipper represents that he was indicted, tried, convicted and sentenced in the above named court, and is now held under a commitment to the state prison for the term of three years, for the offense sought to be defined by section 1 of chapter 5160, Acts of 1903, being Section 5146, Revised General Statutes of Florida, being Section 7247, Compiled General Laws of Florida, 1927.

'True copies of each of said indictment, judgment, and sentence, are hereto attached and made a part hereof as if set forth herein haec verba, and designated exhibits A and B respectively.

'Section 7247, Compiled General Laws, aforesaid is as follows:

"If any officer, agent, clerk, servant or member of incorporated company, or if any officer, clerk, servant, agent or member of any co-partnership, society or voluntary association, or if any clerk, agent or servant of any person, embezzles or fraudulently disposes of, or converts to his own use, or takes or secretes with intent so to do anything of value which has been entrusted to him, or has come into his possession, care, custody or control by reason of his office, employment or membership, he shall be punished as if he had been convicted of larceny.'

'Your petitioner further represents with regard to said statute under which he was convicted and is now held:

'1. No penalty is prescribed therein.

'2. It does not disclose whether the offense denounced therein is a misdemeanor or a felony.

'3. The guilt of one charged under said statute is not made to depend upon the extent of value of the thing converted or embezzled, as the offense is completed upon the conversion or embezzlement of anything of value, whether such value be great or small.

'4. It does not divide the offense into grades or degrees, such as grand or petit embezzlement.

'5. It provides that one who violates its provisions shall be 'punished as if he had been convicted of larceny,' and does not point out the particular kind of larceny referred to, nor point out the statute containing such penalty so that is may be ascertained.

'Therefore petitioner says the statute, his indictment, trial, conviction, sentence and commitment thereon, his detention thereunder are illegal; and he cites said statute and calls the validity of the same in question because it is repugnant to section 1 of article 14, Amendments to the Constitution of the United States, in that it deprives him of his liberty without due process of law.

'Petitioner further says that the said statute did not define nor the said indictment charge him with the commission of a felony; and the court did not adjudge him to be guilty of a felony, as will more fully appear by the copy of the judgment hereto attached and designated exhibit B.

'Petitioner further says that the indictment, judgment, sentence and commitment are all void by reason of the void statute upon which the accusation was based.

'Petitioner further says that he is being unlawfully held and detained by Honorable Doyle Schumacher, Sheriff of Highlands County, upon said commitment issued upon said void judgment, and that said commitment is for the purpose of carrying out the void sentence and to commit your petitioner to imprisonment in the State prison at hard labor for the term of three years.

'The premises considered your petitioner prays that a writ of habeas corpus may be issued in his behalf directed to the said Doyle Schumacher as Sheriff of Highlands County aforesaid, or to whomsoever may hold him by reason of said commitment commanding him or them to have your petitioner before this court instanter, together with the date and cause of his detention; and that your petitioner be discharged.

'C. A. Skipper

'Petitioner.'

It thus appears that the object of the writ of habeas corpus applied for in the court below was to again bring in question in the circuit court the validity of the judgment of conviction of petitioner, which judgment was affirmed by the court in Skipper v. State, 114 Fla. 312, 153 So. 853 (appeal to U.S. Supreme Court dismissed 55 S.Ct. 76, 79 L.Ed. --), and thereby adjudicated to be valid and subject to enforcement as such.

The writ of habeas corpus is a writ of right in the enlarged sense of the term, but it does not issue as of course in every instance. Reasonable grounds must be shown to exist for awarding it, and, if it appears on the face of the petition that the applicant for it is lawfully held and would only be remanded, the writ should be denied when applied for in the first instance. The writ of habeas corpus is a writ of right only when some showing is made duly entitling the applicant to the use of the writ. Ex parte Amos, 93 Fla. 5, 112 So. 289; Lee v. Van Pelt, 57 Fla. 94, 48 So. 632; Haile v. Gardner, 82 Fla. 355, 91 So. 376; Frederick v. Rowe, 105 Fla. 193, 140 So. 915; State ex rel. Davis v. Hardie, 108 Fla. 133, 146 So. 97.

In the present case the writ of habeas corpus was applied for by a petition which showed on its face that the applicant for the writ had been duly indicted, tried, adjudged guilty, and sentenced to state prison in the circuit court, whose judgment of conviction had been duly reviewed and affirmed by the Supreme Court.

A judgment of the circuit...