169 So. 58 (Fla. 1936), Skipper v. Schumacher

Citation:169 So. 58, 124 Fla. 384
Opinion Judge:BROWN, Justice.
Party Name:SKIPPER v. SCHUMACHER, Sheriff.[*]
Attorney:[124 Fla. 386]W. D. Bell, of Arcadia, for petitioner. Cary D. Landis, Atty. Gen., Roy Campbell, Asst. Atty. Gen., and J. C. Adkins, State Atty., of Gainesville, for respondent.
Case Date:May 28, 1936
Court:Supreme Court of Florida
 
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169 So. 58 (Fla. 1936)

124 Fla. 384

SKIPPER

v.

SCHUMACHER, Sheriff. [*]

Florida Supreme Court, Division A.

May 28, 1936

Rehearing Denied June 26, 1936.

Original habeas corpus proceeding by C. A. Skipper against Doyle Schumacher, as sheriff of Highlands county, fla.

Writ quashed, and petitioner remanded to the custody of the sheriff.

COUNSEL

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[124 Fla. 386]W. D. Bell, of Arcadia, for petitioner.

Cary D. Landis, Atty. Gen., Roy Campbell, Asst. Atty. Gen., and J. C. Adkins, State Atty., of Gainesville, for respondent.

OPINION

BROWN, Justice.

Upon the petition of C. A. Skipper alleging that for various reasons he was unlawfully restrained of his liberty by the respondent sheriff of Highlands county, this court issued a writ of habeas corpus directed to the respondent commanding him to have the petitioner before this court, together with the cause of detention. The

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respondent's return to the writ shows that he was and is holding the petitioner in custody upon the authority of two commitments issued out of the circuit court for Highlands[124 Fla. 387] county, one issued November 6, 1935, and the other November 20, 1935, which commitments wher issued pursuant to a judgment of conviction and sentence of the petitioner to the state penitentiary for embezzlement and conversion of bank funds; certified copy of said commitments and judgment of conviction being attached to and made a part of respondent's return.

The judgment of conviction referred to was affirmed by this court in the case of Skipper v. State, 114 Fla. 312, 153 So. 853. (Appeal to U.S. Supreme Court dismissed 'for the want of a properly presented Federal question,' Skipper v. State of Florida, 293 U.S. 517, 55 S.Ct. 76, 79 L.Ed. 631.) Thereafter, Skipper petitioned the circuit court of Highlands county for a writ of habeas corpus, which was denied. On writ of error, allowed by this court, the judgment of the circuit court denying the writ of habeas corpus was reviewed and upon consideration was affirmed. Skipper v. Schumacker, 118 Fla. 867, 160 So. 357. Rehearing was applied for and denied. Thereafter, petition for writ of certiorari was filed in the United States Supreme Court for review of the judgment of this court, and according to the briefs in this case, said petition was denied, October 14, 1935. Skipper v. Schumacher, 296 U.S. 578, 56 S.Ct. 88, 80 L.Ed. 408. Thereafter, the petitioner herein filed a petition in this court for permission to apply to the circuit court of Highlands county for a writ of error coram nobis, which petition was denied without opinion; whereupon this petition for writ of habeas corpus was filed, with copy of said petition for leave to apply to the trial court for writ of error coram nobis thereto attached and made a part thereof. The case is now before us upon the petition for writ of habeas corpus, the writ, and the return thereto.

Most of the legal questions raised by the present petition for habeas corpus have been heretofore ruled upon and decided[124 Fla. 388] by this court, adversely to the contentions of the petitioner, in the opinions and decisions above referred to, reported in 114 Fla. 312, 153 So. 853, and 118 Fla. 867, 160 So. 357.

It is now among other things contended that section 7247, Comp.Gen.Laws of 1927, which this court held applicable to the first three counts of the indictment, is an invalid statute, because it does not disclose whether the offense denounced therein is a misdemeanor or a felony; that the guilt of one charged under said statute is not made to depend upon the extent of the value of the thing converted or embezzled, as the offense is complete upon the conviction for embezzlement of anything of value, whether such value be great or small; that the statute does not divide the offense into grades or degrees, such as grand or petit embezzlements, but merely 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 the statute containing such penalty, so that it may be ascertained.

Section 25 of article 16 or our Constitution provides that: 'The term felony, whenever it may occur in this Constitution or in the laws of the State, shall be construed to mean any criminal offence punishable with death or imprisonment in the State penitentiary.' And section 7105, C.G.L., reads: 'Any crime punishable by death, or imprisonment in the State prison, is a felony, and no other crime shall be so considered. Every other offense is a misdemeanor.'

Grand larceny is defined by section 7223, C.G.L., being section 5122 of Revised General Statutes of 1920, and petit larceny is defined by section 7224, C.G.L., being section 5123, Revised General Statutes; the distinction between the [124 Fla. 389] two being based upon the value of the property stolen. If the property stolen is of the value of $50 or more, the offender is deemed guilty of grand larceny; if the value is less than $50, the offender is deemed guilty of petit larceny. The punishment for grand larceny is by imprisonment in the state penitentiary not exceeding 5 years, or in the county jail not exceeding 12 months, or by fine not exceeding $1,000. The punishment for petit larceny is by imprisonment in the county jail not exceeding six months or by fine not exceeding $300. These two sections of the statutes are both derived from chapter 1637 of the Acts of 1868. Following these sections there are a number of special forms of larceny such as stealing in a burning building, stealing bank note paper, stealing logs or timber, the stealing of horses and cattle, etc.

Section 7247, C.G.L., the embezzlement statute here involved, provides that any person offending against its provisions

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'shall be punished as if he had been convicted of larceny.'

The contentions of the petitioner have been effectually disposed of by the decision of this court in the case of Wilson v. State, 47 Fla. 118, 36 So. 580, 581, wherein it was held that:

'Where the statute defines the crime of embezzlement and provides that one convicted thereof 'shall be punished as if he had been convicted of larceny,' it has reference to the general law on the subject of larceny, and not to special cases.'

In the opinion of Mr. Justice Cockrell, speaking for the court in that case, it was said:

'If the 'larceny' referred to in the embezzlement act means the general law on the subject of larceny, the punishment here inflicted is within the law as it then existed and as it now is, and that such is the proper construction [124 Fla. 390] we have no doubt. In Strong v. Lake Weir Chautauqua & Lyceum Ass'n, 25 Fla. 765, 6 So. 882, we held that under the mechanic's lien law, providing that the liens 'shall be enforced by attachment in manner provided by law,' the reference is to the general attachment law of the state, and not to attachments authorized in special cases. In that opinion this court said: 'If the proceeding in any special case had been in contemplation, the act would have so declared.' Specific laws have reference to specific conditions, and, when those conditions change, the Legislature readily repeals or modifies such laws, while general laws are permanent in their nature and not subject to frequent change; and, in the absence of language to the contrary, it is to be presumed that the Legislature has in mind the general law, and not some special act due to transitory conditions. The property embezzled was alleged and proven to be of the value of $100, and the sentence was within the law.'

See, also, Crawford v. State, 93 Fla. 1082, 113 So. 90.

The petition for the writ of habeas corpus further alleges in general language that the state of Florida contrived the conviction of the petitioner through pretense of a trial which in truth and in fact was only used as a means of depriving him of his liberty through a deliberate deception of the court and the jury by the presentation of testimony at his trial known to be untrue, and that without the testimony so presented there would have been no basis whatever for his conviction, and that such contrivance by the agents of the state of Florida who procured his convicted and imprisonment is inconsistent with the rudimentary demands of justice, and that the judgment of conviction against him was obtained by fraud upon the court and is null and void, and that his imprisonment thereunder is a denial to [124 Fla. 391] him of due process of law and equal protection of the laws in contravention of section 1 of the Fourteenth amendment to the Constitution of the United States.

Probably realizing that these general allegations were not sufficient under the rules of pleading, the petitioner then alleges that his petition for writ of error coram nobis, a true copy of which is attached to the present petition, sets up the illegality of said judgment and the manner in which it was obtained, and that all the matters and things set forth and alleged in said petition for coram nobis in the Supreme Court of Florida are true and all of said allegations are made a part of this petition as if set forth therein in haec verba.

Turning to the petition thus attached as an exhibit, it is there alleged that since the determination of this case in the Supreme Court of Florida the plaintiff in error had learned that a certain state's witness, one C. E. Lien, had been induced to testify falsely that plaintiff in error embezzled the money alleged in the indictment when as a matter of fact plaintiff in error did not embezzle said money. Paragraphs 4, 5, and 6 of the said petition, attached as an exhibit, read as follows:

'IV. That the indictment in said cause was...

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