Ex Parte Tully

• Decision Date: 23 September 1914
• Citation: 70 Fla. 1,66 So. 296
• Parties: Ex parte TULLY et al.
• Court: Florida Supreme Court

66 So. 296

70 Fla. 1

Ex parte TULLY et al.

Florida Supreme Court

September 23, 1914

Original proceeding in habeas corpus before a Justice of the Supreme Court by A. E. Tully and another. Petitioners remanded.

(Syllabus by the Judge.)

COUNSEL W. C. Hodges and F. B. Winthrop, both of Tallahassee, W. H. Price, of Marianna, W. J. Oven, of Tallahassee, and Nat R. Walker, of Crawfordville, for petitioners.

Geo. W Walker, State Atty., of Quincy, and Guyte P. McCord, of Tallahassee, for the State.

OPINION

WHITFIELD, J.

In an application for a writ of habeas corpus made to a justice of the Supreme Court of Florida, it is in effect alleged that the petitioners have been denied bail and are held in custody by the sheriff of Leon county, Fla., by virtue of a mittimus issued under a charge of rape; that the petitioners 'do not question the legality of the process under which they are held, or the proceeding out of which process issued, but allege that they are guilty of no capital offense whatsoever,' and are unlawfully held in custody by being denied the right to give bail; that petitioners ask for a hearing upon a writ of habeas corpus solely for the purpose of determining whether or not the proof of the capital offense charged against them is evident or the presumption great, so that the petitioners may avail themselves of their constitutional right to bail if entitled to do so. A writ of habeas corpus was issued by the justice. Owing to the absence from the state of the judge of the judicial circuit in which Leon county is situated, the writ was made returnable for hearing before the justice who issued it. The return of the sheriff shows his authority for the custody of the petitioners to be as alleged and stated above. The petitioners move to be allowed bail.

Section 9 of the Declaration of Rights of the state Constitution ordains that:

'All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great.'

Section 3221 of the General Statutes provides that:

'Whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, * * * shall be punished by death or by imprisonment in the state prison for life.'

A conviction for rape, which is a capital offense, may be sustained on the affirmative testimony of the prosecuting witness, when the witness is not fully impeached or discredited, particularly where there are corroborated facts and circumstances in evidence.

In habeas corpus proceedings to secure bail the burden rests upon the petitioners to prove that they are entitled to bail under the Constitution by showing that the proof is not evident and the presumption not great of the capital offense alleged against them. The evidence for the state, as well as that for the accused, should be presented by the petitioners in an application for bail. Rigdon v. State, 41 Fla. 308, 26 So. 711. The petitioners may, by proper procedure, test the probative force of the testimony for the state, in order to fully present their case for the purposes of the hearing.

It is the province of a jury, in an appropriate judicial trial, to pass upon the credibility and probative force of conflicting testimony and to ultimately determine the guilt or innocence of persons charged with capital offenses, subject to such review as may be provided by law.

In this proceeding it cannot be determined whether the petitioners are guilty or innocent of the capital offense charged against them, or of any offense. The only question here presented for determination is whether 'the proof is evident or the presumption great' that each of the petitioners did, as alleged, ravish and carnally know 'a female of the...