Deeb v. Gandy

• Decision Date: 23 May 1933
• Parties: DEEB v. GANDY, Sheriff.
• Court: Florida Supreme Court

148 So. 540

110 Fla. 283

DEEB v. GANDY, Sheriff.

Florida Supreme Court, Division B.

May 23, 1933

Error to Circuit Court, Escambia County A. G. Campbell, Judge.

Proceeding by George Deeb for a writ of habeas corpus to H. E. Gandy Sheriff of Escambia County. Judgment remanding relator to respondent's custody, and relator brings error.

Order that relator be set at liberty on entering into bail bond in stated sum.

COUNSEL Philip D. Beall and A. A. Fisher, both of Pensacola, and B. K. Roberts, of Tallahassee, for plaintiff in error.

Cary D Landis, Atty. Gen., Roy Campbell, Asst. Atty. Gen., and J McHenry Jones, of Pensacola, for defendant in error.

OPINION

PER CURIAM.

This case comes before us on writ of error to a judgment of the circuit court of the First judicial circuit in a habeas corpus proceeding wherein the plaintiff in error was remanded to the custody of the sheriff of Escambia county to be held without bail on a charge of murder in the first degree.

Writ of error affords the proper method of review of a judgment in habeas corpus proceedings. See Tyler v. Painter, 16 Fla. 144, and authorities there cited.

If, however, a circuit court on petition refuses to issue a writ of habeas corpus, then the petitioner may apply direct to this court, presenting his original petition here which will be treated as an application to this court for an original writ. See Ex parte Jeffcoat (Fla.) 146 So. 827 opinion filed March 23, 1933.

The question for us first to determine here is whether or not the proof is evident, or the presumption great, that the alleged homicide was committed by Deeb from and with a premeditated design to effect the death of the person assaulted, and not whether or not Deeb unlawfully killed the person assaulted. The case was presented to the court below on stipulation between counsel for the state and counsel for the defendant that a transcript of the testimony taken before the coroner's jury would constitute all the evidence to be submitted either by the state or the defendant for the purpose of that hearing, and the same testimony comes to us for consideration embodied in a bill of exceptions.

The rule appears to be well settled that it is improper, where an appellate court is reviewing the judgment of the circuit court in refusing bail in a criminal case, for the appellate court in the opinion to comment upon, or discuss, the evidence because of the probability that such comment upon, or discussion of, such evidence might have influence in the determination of the cause on the final trial. Ex parte Mancill, 15 Ala. App. 421, 73 So. 756; Ford v. Dilley, 174 Iowa, 243, 156 N.W. 513; Ex parte Garvin, 18 Okl. Cr. 17, 192 P. 363; Ex parte Argenta, 88 Tex. Cr. R. 41, 224 S.W. 891; Ex parte Smith, 85 Tex. Cr. R. 649, 215 S.W. 299; Ex parte Webster, 80 Tex. Cr. R. 644, 192 S.W. 1063; Ex parte Parker, 80 Tex. Cr. R. 114, 188 S.W. 983; Sapp v. State, 77 Tex. Cr. R. 400, 179 S.W. 109; Ex parte Lawrence (Tex. Cr. App.) 137 S.W. 697; Ex parte Sperger, 62 Tex. Cr. R. 133, 137 S.W. 351; Ex parte Beaupre (Tex. Cr. App.) 135 S.W. 547; Ex parte McFarlane (Tex. Cr. App.) 129 S.W. 610; Ex parte Rucker, 6 Tex.App. 81; Ex parte McKinney, 5 Tex.App. 500; Ex parte Day, 3 Tex.App. 328; Ex parte Cook, 2 Tex.App. 388; Sharp v. State, 1 Tex. App. 299.

We therefore refrain from here entering into a discussion of the evidence to show our reasons for arriving at the conclusion reached.

In Gainey v. State, 42 Fla. 607, 29 So. 405, in which case this court had before it an application for bail in the case wherein the petitioner was charged with murder in the first degree, this court said:

'Where the proofs in such a case go no further than to establish a 'probability' of guilt, they are not sufficient either to sustain a verdict of conviction or to call for a denial of bail.'

In Russell v. State, 71 Fla. 236, 71 So. 27, 28, this court said:

'The question is not whether the evidence adduced on an application for bail is sufficient to establish guilt beyond a reasonable doubt, but whether the evidence is sufficient to establish that degree of proof where the judge to whom the...