Ex parte Stirrup

• Decision Date: 17 November 1944
• Citation: 19 So.2d 712,155 Fla. 173
• Parties: Ex parte STIRRUP.
• Court: Florida Supreme Court

19 So.2d 712

155 Fla. 173

Ex parte STIRRUP.

Florida Supreme Court

November 17, 1944

Charles Franklin Stirrup, in pro. per.

J. Tom Watson, Atty. Gen., and John C. Wynn, Asst. Atty Gen., for appellee.

SEBRING, Justice.

This is a habeas corpus proceeding to test the legality of the imprisonment of the petitioner, Charles Franklin Stirrup. The judgment under which sentence was given was based upon an information that Charles Franklin Stirrup 'did unlawfully, knowingly and designedly and by false pretense and with intent to defraud one R. H. Morgan, obtain from said R. H. Morgan the sum of $25.00 lawful money of the United States of America, said pretense and representation being that he, the said Charles Franklin Stirrup owned a truckload of household furniture that was then on a truck in St. Petersburg, Florida, with transfer charges of $25.00 due on said furniture which had to be paid before the said Charles Franklin Stirrup could get said furniture released from the transfer company, and the said R. H. Morgan relying upon and believing said false representation to be true, paid over to the said Charles Franklin Stirrup the sum of $25.00 aforesaid, the said Charles Franklin Stirrup making said false representation and statements well knowing same to be false and untrue and with intent then and there to injure and defraud said R. H. Morgan as aforesaid.' The petitioner was arraigned on the information and entered a plea of guilty. The trial judge sentenced him to five years at hard labor at the State Prison. He is now serving the sentence. The question is whether the information charges a criminal offense under the law.

Habeas corpus may be invoked to secure release of a person from imprisonment if the act of which he stands convicted is not in law a crime. A petitioner is not entitled to release, however, if the charge be merely defective in its allegations; it must wholly fail to state any offense under the laws of the state. Ex parte Hays, 25 Fla. 279, 6 So. 64; Ex parte Bailey, 39 Fla. 734, 23 So. 552; Lewis v. Nelson, 62 Fla. 71, 56 So. 436; Foxworth v. Law, 77 Fla. 596, 82 So. 55. But where the indictment or information wholly fails to charge any offense under the law, the petitioner will be entitled to discharge on habeas corpus, even though he may have voluntarily entered a plea of guilty to the charge. Though a plea of guilty is a confession of guilt of the highest order and authorizes the imposition of the sentence prescribed by law as upon a verdict of guilty, such plea admits only the acts charged, and does not preclude the defendant from claiming that such facts charged do not constitute a crime. 2 Bish.New Crim.Proc. Sec. 795; Wharton's Criminal Evidence, 12th Ed., p. 975, Sec. 587; 14 Am.Jur. 952, Criminal Law Sec. 272; 22 C.J.S., Criminal Law, § 424, pp. 655-658; State v. Schrup, 229 Iowa 909, 295 N.W. 427; People v. Maffei, 237 Ill.App 325; People v. Bandy, 239 Ill.App. 273; State v Small, 313 Mo. 66, 280 S.W. 1033. Moreover, a judgment founded upon such a void charge is without legal foundation and is insufficient upon which to base a valid commitment for imprisonment. Brown v. State, 152 Fla. 853, 13 So.2d 458; Sellers v. Bridges, 153 Fla. 586, 15 So.2d 293 148 A.L.R. 1240.

The petitioner was charged under Sec. 817.01, Florida Statutes 1941, F.S.A., which provides that 'Whoever designedly by a false pretense * * * and with intent to defraud, obtains from another person any property, * * * shall be punished by imprisonment in the state prison not exceeding ten years, or by fine not exceeding five hundred dollars.' To constitute the criminal offense denounced by the statute, there must be a representation of a past or existing fact or circumstance by the defendant to another for the purpose of obtaining property from the latter; the representation must be false in fact; it must have been made with knowledge of its falsity; it must have been made with intent to deceive the other party; it must have been believed by the other party; he must have parted with his property to the defendant because of it. Clifton v. State, 76 Fla. 244, 79 So. 707; State ex rel. Warren v. Sweat, 135 Fla. 661, 185 So. 453; Finlay v. State, 152 Fla. 396, 12 So.2d 112.

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