Ex Parte Sirmans

• Decision Date: 01 November 1927
• Citation: 116 So. 282,94 Fla. 832
• Parties: Ex parte SIRMANS.
• Court: Florida Supreme Court

116 So. 282

94 Fla. 832

Ex parte SIRMANS.

Florida Supreme Court, Division B.

November 1, 1927

Error to Circuit Court, Lee County; George W. Whitehurst, Judge.

Proceeding by S. J. Sirmans for habeas corpus to be directed to Frank B Tippins, Sheriff of Lee County. Judgment remanding the petitioner, and he brings error.

Reversed with directions.

Ellis C.J., dissenting.

Syllabus by the Court

SYLLABUS

Supreme Court takes judicial cognizance that county judge has jurisdiction as committing magistrate in all felony cases arising within his county; Supreme Court takes judicial congnizance that Glades county as within Twelfth judicial district; Supreme Court takes cognizance that certain person is judge of certain circuit; Supreme Court takes judicial cognizance that circuit judges, as conservators of peace, are vested with power and authority of committing magistrates (Const. 1885, art. 5, §§ 11, 17, 36; Rev. Gen. St. 1920,§§ 3001, 6001, 6024). The court will take judicial cognizance of the fact that the county judge has jurisdiction as a committing magistrate in all felony cases arising within his county, and that Glades county is within the Twelfth judicial circuit of Florida, and Hon. George W. Whitehurst is circuit judge of that circuit, and that circuit judges, as conservators of the peace, are vested with the power and authority of committing magistrates.

Courts of concurrent jurisdiction are of equal dignity as to matters so cognizable; in both state and federal jurisdictions rule is that, in cases of concurrent jurisdiction in different tribunals, one first exercising jurisdiction acquires control to exclusion of other. Courts of concurrent jurisdiction are of equal dignity as to matters so cognizable, and the uniform rule in both state and federal jurisdictions is, 'in cases of concurrent jurisdiction in different tribunals, the one first exercising such jurisdiction acquires control to the exclusion of the other.'

As regards county court's jurisdiction, whether one charged with homicide is entitled to bail is justiciable matter on presentation on preliminary hearing to county judge; judgment of county judge that one accused of homicide is entitled to bail is res judicata of circuit courts jurisdiction of same offense until change in conditions is shown; circuit judge held without jurisdiction to rearrest person for same offense for which he had previously been arrested and admitted to bail in county court (Rev. Gen. St. 1920, §§ 6001, 6031 6045). The question of whether or not a defendant is entitled to be released on bail is a justiciable matter when same is presented on a preliminary hearing before a county judge proceeding under a valid affidavit charging the defendant with the crime of homicide alleged to have been committed within the county and the judgment of the county judge that the accused is entitled to bail is res adjudicata as to that issue until a change in conditions is shown, or until another court of competent jurisdiction shall have acquired jurisdiction of the cause by having filed therein an indictment or information charging the offense.

COUNSEL

Stafford Caldwell, of Jacksonville, R. C. Horne, of Madison, B. A. Bales, of Moore-Haven, and C. L. Waller and W. C. Hodges, both of Tallahassee, for plaintiff in error.

Fred H. Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for defendant in error.

OPINION

BUFORD, J.

This matter is before this court on writ of error to the judgment of the judge of the circuit court of the Twelfth judicial circuit of Florida remanding the petitioner, Sirmans, to the custody of the sheriff of Lee county, Fla. The original writ was issued by a justice of this court, returnable before the Honorable George W. Whitehurst, judge of the Twelfth judicial circuit of Florida, at his office in Ft. Myers, and is directed to Frank B. Tippins, sheriff of Lee county, Fla. The return of the sheriff is as follows:

'Comes now F. B. Tippins, sheriff of Lee county, Florida, to whom the writ herein is directed and produces in open court, in answer to said writ, the body of S. J. Sirmans; and for return thereto answers and says that he has the said S. J. Sirmans in his custody, and holds him under and by virtue of a warrant issued by George W. Whitehurst, judge of the Twelfth judicial circuit of Florida, under date of October 6, 1927; and now produces the body of the said S. J. Sirmans to this court, together with the writ of habeas corpus issued herein, the same being hereto attached.'

Motion was made to quash the return upon the following grounds:

'(1) That it appears upon the face of said return that the said alleged bench warrant was issued subsequent to the writ to which the return is made and does not show any authority for the said F. B. Tippins to hold the petitioner in the face of said writ.

'(2) That the said alleged bench warrant was issued at a time when the petitioner was in custody and not at large, as appears upon the face of said return.

'(3) That the alleged bench warrant appears by the return to said writ to have been issued subsequent to the granting of bail to the petitioner by the county judge of Glades county, Fla.

'(4) That prior to the issuance of said bench warrant the defendant was arrested by the sheriff of Glades county, Fla., and confined in the county jail of Glades county, Fla., and upon his application was given, on the 26th and 27th of September, 1927, a preliminary hearing, after which the county judge of Glades county entered an order directing and instructing the sheriff of Glades county, Fla., to release the petitioner upon the posting of a $15,000 bail, which bail was by petitioner posted and accepted by the sheriff of Glades county, Fla., in cash.

'(5) That this court has no jurisdiction to issue the bench warrant while the defendant was in the custody of the county judge's court of Glades county, Fla., and had been given a preliminary hearing and admitted to bail.

'(6) That a bench warrant cannot be issued for this petitioner except after an indictment has been found against him.

'(7) That the alleged bench warrant recites and charges that the petitioner committed a crime in Glades county, Fla., and not in Lee county, Fla., and the petitioner cannot be lawfully held under said warrant in Lee county, Fla.

'(8) That the alleged bench warrant is not attached to the return to show the authority of the sheriff of Lee county, Fla., for holding the petitioner.'

Motion coming on to be heard, the following order was made:

'This cause came on to be heard this day, pursuant to the writ of the Supreme Court and the sheriff's return thereto, and the court having examined the said return of the sheriff and the exhibit attached thereto, the court is of the opinion that the said sheriff to whom the writ is directed, by virtue of his return and exhibit thereto, has shown sufficient authority for holding the said S. J. Sirmans.

'And the counsel for petitioner having moved to quash the return of the said sheriff, it is considered by the court that the said motion be overruled.

'The state having moved the court that the state be allowed to withdraw the warrant attached to the sheriff's return and substitute a certified copy therefor, it is considered by the court that the application be granted and that the clerk substitute a certified copy of said warrant for the original and deliver the original thereof to the said sheriff.

'It is thereupon ordered and adjudged that the petitioner be and he is hereby remanded to the custody of the said sheriff.

'Done and ordered in chambers this 7th day of October, 1927.'

The bill of exceptions contains the following language and judgment by the court:

'At the hearing it appeared to the court in open court that prior to the making of the affidavit by S. A. Douglas on the 6th day of October, A. D. 1927, charging the said S. J. Sirmans with the crime of murder, and prior to the issuance of the warrant by the circuit judge of the Twelfth judicial circuit of Florida in the county of Lee, under which warrant the sheriff of Lee county held said prisoner as set forth in the return of said sheriff, that the said S. J. Sirmans had been charged by an affidavit of the sheriff of Glades county with the crime of murder, which said affidavit was made before Judge D. L. Lence, county judge of Glades county, and that pursuant to said affidavit, a warrant was issued by said county judge of Glades county for the arrest of the said S. J. Sirmans, and that he was, pursuant to said warrant duly and promptly arrested and placed in jail, and that the said S. J. Sirmans was later transferred from the Glades county jail to the Lee county jail for safekeeping by order of the Governor of the state of Florida; that a preliminary hearing was had before the county judge of Glades county, and that said prisoner was held to await the action of the grand jury of Glades county, which said hearing was held on the 26th and 27th of September A. D. 1927; that at said hearing the county judge took under advisement the question of whether or not the said S. J. Sirmans should be admitted to bail, and on the 4th day of October said county judge of Glades county rendered his decision and entered a judgment admitting the prisoner to bail upon the execution of...