Benjamin v. State

• Decision Date: 09 July 1889
• Citation: 25 Fla. 675,6 So. 433
• Parties: BENJAMIN v. STATE.
• Court: Florida Supreme Court

6 So. 433

25 Fla. 675

BENJAMIN v. STATE.

Florida Supreme Court

July 9, 1889

Error to circuit court, Volusia county; JOHN D. BROOME, Judge.

James H. Benjamin was arrested on the charge of murder, and waived an examination before the committing magistrate and was committed. He applied to the circuit court for a writ of habeas corpus on the ground that, the proof not being sufficient to sustain the charge of murder, he was entitled to bail. The application was refused by the circuit court and defendant brings error.

Syllabus by the Court

SYLLABUS

1. A person accused of a capital crime, and held under a mittimus issued by a magistrate to await the action of the grand jury is entitled upon habeas corpus to introduce evidence and show the real character or circumstances of the alleged offense and should be admitted to bail unless 'the proof is evident, or the presumption great,' that he is guilty of a capital offense. This right on habeas corpus is not lost or surrendered by the accused having waived a preliminary examination before the magistrate, and the omission of the magistrate to make the examination on account of such waiver.

2. If a person accused of crime waives a preliminary examination before a magistrate, and on account of the waiver no examination is had, he will be estopped to claim any advantage because of the absence of such examination.

3. That the proposal of a person charged with crime to waive a preliminary examination before a magistrate necessarily relieves the magistrate from making the examination, quoere?

COUNSEL Foster & Gunby, for plaintiff in error.

W. B. Lamar, Atty. Gen., and Alex. St. ClairAbrams for the State.

OPINION

RANEY, C.J.

The habeas corpus act of 1879, (McClel. Dig. 563 et seq.,) provides that the court, justice, or judge before whom the prisoner shall be brought shall, without delay, proceed to inquire into the cause of his imprisonment, and shall either discharge him, admit him to bail, or remand him to custody as the law and evidence shall require, (sections 7 and 8, Id.;) that the return made to each writ may be amended, and shall not be taken to be conclusive as to the facts stated therein, but it shall be competent for the court, justice, or judge before whom such return is made to examine into the cause of the imprisonment or detention, to receive evidence in contradiction of the return, and to determine the same as the very truth of the case shall require. The same power to compel the attendance of witnesses is given to a judge or justice in vacation as the court has in term-time, and the use of the affidavit of a witness whose presence it may be inconvenient to procure is authorized, when taken upon reasonable notice to the adverse party. Section 9.

In Ex parte Eagan, 18 Fla. 194, (decided at the January term, 1881,) it was held that it was in the power of the supreme court on habeas corpus, under this statute, to have a preliminary examination of a party arrested under a warrant issued by a justice of the peace, hear evidence, and discharge, bail, or remand into custody, but that the exercise of the power under such circumstances was discretionary, and, as a general rule, it would remand the prisoner for an examination before the magistrate issuing the warrant; and that the affidavit of the petitioner that he did not believe he could get a fair examination before the magistrate, coupled with the presence of two material witnesses at the place where the habeas corpus was returnable, would not justify a departure from such general rule. The preliminary examination was held, however, by the supreme court, on the consent of the state, through the attorney general, made on the ground that such course would save the state great expense.

There is no doubt as to a circuit court or any judge thereof, or a justice of this court, having the same power.

The habeas corpus act of 1879 is a revision of that of 1822, to be found in Thomp. Dig. 527-530, and we are satisfied, and a comparison of the statutes will show, that it in no way restricts the remedial application of this writ, or the power of the judiciary in administering it, as they existed under the former statute.

Decisions of this court prior to the revision show the power of the court under the former act. In Ex parte Harfourd, 16 Fla. 283, the commitment was made for an act not criminal and one criminal, and hence irregular, and it was held that the circuit court should, on habeas corpus, if required by the accused, hear and examine into the evidence for the purpose of determining what criminal act had been committed, and the probable cause shown against the accused, and this, whether the warrant of commitment was regular or irregular. The decision in Finch v. State, 15 Fla. 633, was: When a person is indicted for a capital offense, he is entitled, upon habeas corpus, to produce, for the purpose of being discharged on bail, such evidence as may operate to convince the court that the offense is of such grade, or that there are such strong doubts in the case, that a jury should not, upon the case as presented, convict of a capital offense; and in Holley v. State, Id. 688, it was held that a party indicted for murder is entitled, upon proper application, to the writ for the purpose of showing such facts as may satisfy the court that the proof is not strong, nor the presumption great, that he is guilty of a capital offense, and that he is entitled to be discharged on bail; and, further, that the indictment charging a capital offense was not conclusive upon such application, under the statute, as to the character of the testimony.

Under section 9 of the declaration of rights in the present consistitution of this state 'all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great.' Const. 1885.

The mittimus or warrant issued by the justice of the peace to the sheriff, committing the plaintiff in error to jail, recites that, upon the examination held by the justice, the plaintiff in error 'waived an examination,' and the docket of the magistrate shows that he pleaded 'not guilty' to the charge contained in the affidavit on the same being read to him, and that he 'waived further examination;' and it is contended by the state that such waiver estops the plaintiff in error from seeking bail or a discharge on habeas corpus.

A discharge is not sought, and consequently we will confine ourselves to a consideration of the effect of such waiver upon the right to bail.

The authorities relied upon by counsel representing the state are In re Madison, 36 Kan. 729, 14 P. 144; Stuart v. People, 42 Mich. 255, 3 N.W. 863; State v. Cobb, 71 Me. 198.

In the first of these cases Madison and others were charged with murder in the first degree, and he showed in his petition for a writ of habeas corpus that they had waived a preliminary examination before the justice of the peace, because they believed, as did their counsel and the sheriff having them in custody, that they were in danger of being mobbed or shot down pending such examination; and it was insisted that, having once waived such examination, they were not entitled to have the charges against them investigated, or be let to bail. The opinion of the Kansas court on this subject is that a defendant who is charged with murder in the first degree, and who has waived a preliminary examination for such offense, not only waives his right to be let to bail, but also to have the facts and circumstances of the alleged offense examined into on a writ of habeas corpus; that there are, however, exceptions to this rule, as where, at the time of such waiver of examination, there are good grounds to believe that if an examination is gone into personal violence will be used against defendant, and under such apprehension an examination is waived, he will not be estopped by reason of such waiver; that to be estopped he must have waived his right to an examination from a free choice, after a fair opportunity to have an impartial examination; and no mere imaginary danger will justify it, but there must be a well-grounded belief, based upon such information or observation as would be calculated to excite fear of bodily harm in the mind of a reasonable person.

After a careful examination of the vast amount of testimony in the case, the court concluded that the preliminary examination had been waived from fear of personal violence, and that the prisoners were entitled to be let to bail.

Stuart v. People was not an application for bail, nor a habeas corpus case. Stuart was arrested upon a warrant issued by a magistrate upon a complaint, sufficient in form and substance, charging him with a criminal offense. He waived an examination, and was thereupon held for trial, and was tried and convicted before the superior court of Grand Rapids. Upon the trial he moved to quash the information filed by the prosecuting attorney, on the ground that there had been no examination by the magistrate before whom he had been brought on the warrant, and the superior court denied the motion. The statute of Michigan provides (sections 7844, 7845, Comp. Laws 1871) that the warrant of arrest shall issue upon examination of the complainant and any witnesses who may be produced by him; and (section 7855) that the magistrate before whom any person is brought upon a charge of having committed an offense shall proceed to examine the complainant and the witnesses in support of the...