Dowling v. Lee

• Decision Date: 25 June 1914
• Citation: 66 So. 142,68 Fla. 23
• Parties: DOWLING, Sheriff v. LEE.
• Court: Florida Supreme Court

66 So. 142

68 Fla. 23

DOWLING, Sheriff v. LEE.

Florida Supreme Court

June 25, 1914

Rehearing Denied July 8, 1914.

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Habeas corpus by John P. Lee against W. H. Dowling, as sheriff of Duval county, Fla. Judgment for petitioner, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

Habeas corpus cannot be used to take the place, or to serve the purpose, of a writ of error to determine whether a judgment is erroneous, when the court has jurisdiction of the person and the conviction is of an offense under the law and within the jurisdiction of the court to try.

Where a court-martial has jurisdiction of the person accused and of the offense charged, and acts within the scope of its lawful powers, its decision and sentence cannot be reviewed or set aside by the civil courts, by writ of habeas corpus, or otherwise.

Section 25 of chapter 5930 of the Laws of Florida (Acts of 1909, p 96) is sufficiently broad to embrace commissioned officers of the National Guard of the state of Florida, and, under the authority conferred by the state Constitution, to give general courts-martial jurisdiction over such officers.

Section 23 of chapter 5930 of the Laws of Florida (Acts of 1909, p 95) expressly adopts the Articles of War governing the armies of the United States, in so far as they are not inconsistent with the Constitution and laws of Florida, and provides that such articles shall be applicable to and govern the National Guard of Florida. A general court-martial, convened in this state according to law, has jurisdiction to try a commissioned officer of the National Guard of Florida for an offense cognizable under such Articles of War.

Where a commissioned officer of the National Guard of Florida has been tried before a general court-martial for two offenses and convicted of each charge, he is not entitled to be discharged in habeas corpus proceedings, even though one of such charges may not have constituted an offense under the laws of Florida, where the other charge does charge an offense under such laws.

COUNSEL R. P. Daniel, Jr., of Jacksonville, for plaintiff in error.

Gibbons, Maxwell, McGarry & Daniel, of Jacksonville, for defendant in error.

OPINION

SHACKLEFORD C.J.

John P. Lee, an officer on the supernumerary list of the National Guard of the state of Florida, commissioned as second lieutenant, was arraigned before and tried by a general court-martial, convened by the Governor as commander-in-chief of the National Guard of the state of Florida, sitting in Duval county, on two charges, the first for an offense in violation of the twenty-first Article of War and the second for an offense in violation of the sixty-second Article of War; specifications being set forth to each charge. He was found guilty of each charge and sentenced to pay a fine of $100. The record of the proceedings of the court-martial was submitted to and approved by the Governor and the sentence imposed confirmed and ordered carried into effect. After more than ten days had elapsed from the date of such approval, and Lee not having paid the fine so imposed, the Governor issued his warrant to the sheriff of Duval county, thereby commanding him to arrest Lee and to keep him confined in the jail of Duval county until such fine had been paid or until he had been confined in said jail one day for each dollar, or fraction thereof, of such fine, and the legal fees of such sheriff. This warrant was executed by such sheriff by the arrest and imprisonment of Lee in such jail, whereupon he sued out a writ of habeas corpus and upon a hearing before the circuit judge was ordered to be discharged. W. H. Dowling, as sheriff of Duval county, Fla., has brought this judgment here for review by writ of error. The sole assignment is that the court erred in making its order whereby the petitioner was discharged.

The first point presented to us for determination is as to whether or not the court-martial which tried Lee had jurisdiction of his person and of the subject-matter embraced in the charges presented to the court-martial and upon which he was convicted. As we have several times held, habeas corpus cannot be used to take the place, or to serve the purpose, of a writ of error to determine whether a judgment is erroneous, when the court has jurisdiction of the person, and the conviction is of an offense under the law and within the jurisdiction of the court to try. Hardee v. Brown, 56 Fla. 377, 47 So. 834, and Kinkaid v. Jackson, 66 Fla. 378, 63 South. Rep. 706, wherein prior decisions of this court will be found cited. As was held in Johnson v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914:

'The court-martial having jurisdiction of the person accused and of the offense charged, and having acted within the scope of its lawful powers, its decision and sentence cannot be reviewed or set aside by the civil courts, by writ of habeas corpus, or otherwise.'

See, also, Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Ex parte Mason, 105 U.S. 696, 26 L.Ed. 1213; Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, 29 L.Ed. 601; Swaim v. U. S., 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823; Bishop v. U. S., 197 U.S. 334, 25 S.Ct. 440, 49 L.Ed. 780; In re Crain (C. C.) 84 Feb. 788; People v. Doyle, 28 Misc. 411, 59 N.Y.S. 959.

The first contention made on behalf of the defendant in error, as we understand it, is that the general court-martial by which he was tried and convicted was without jurisdiction over his person, and hence he should have been discharged. We call attention to the fact that, as is shown by the transcript of the record, this was one of the contentions made before the circuit judge in the habeas corpus proceedings, but it would seem that he was not impressed with its soundness, as is shown by his order or judgment, which reads as follows:

'In re Application John P. Lee for Habeas Corpus.

'This matter coming on to be heard upon the petition for a writ of habeas corpus and the return of W. H. Dowling, as the sheriff of Duval county, Florida, and having been argued by counsel, and it appearing to the court that the second charge and the specifications thereto in the proceedings of the court-martial not constituting in law an offense against the laws of the state of Florida, and it appearing that the sentence imposed was based upon the conviction of the said John P. Lee of said illegal charge:

'It is thereupon considered that the prayer of the petition be and the same is hereby granted and that the said W. H. Dowling, as sheriff of Duval county, Florida, is hereby ordered to release the said John P. Lee from custody and the said John P. Lee be and he is hereby released and discharged from custody of said W. H. Dowling, as sheriff of Duval county, Florida.

'Done and ordered this October 1st, 1913.

'Daniel A. Simmons, Judge.'

It is conceded by the defendant in error that general courts-martial, under the authority conferred by the Constitution and statutes of this state, have jurisdiction over the persons of noncommissioned officers and enlisted men, but it is urged that such courtsmartial have not jurisdiction over commissioned officers. As is admitted by the respective parties, chapter 6501 of the Laws of Florida (Acts of 1913, p. 332) has no applicability in the instant case fot the reason that such chapter did not go into effect or become operative until after the commission of the offenses with which Lee was charged. We are of the opinion that this contention has not been sustained. It seems to us that the provisions of section 25 of chapter 5930 of the Laws of Florida, amending section 703 of the General Statutes, found on page 96 of the Acts of 1909, are sufficiently broad to embrace commissioned officers. This section reads as follows:

'Sec. 25. That section 703, of the General Statutes of the state of Florida, be and the same is hereby amended so as to read as follows:

'703 Courts-Martial. General courts-martial may be convened by order of the commander-in-chief or of any general officer, and such courts shall have power to impose fines not exceeding two hundred dollars; to sentence to forfeiture of pay and allowances; to a reprimand; to dismissal or dishonorable discharge from the service; to reduce non-commissioned officers to the ranks; to sentence enlisted men to confinement when in the field on camps of instruction, at rendezvous for target practice, on practice marches, or whenever engaged in active and continuous military duty: Provided, however, that such confinement shall not extend beyond the time of the return to...