Hand v. Smith

• Decision Date: 01 October 1936
• Citation: 125 Fla. 374,170 So. 123
• Parties: HAND, Sheriff v. SMITH.
• Court: Florida Supreme Court

170 So. 123

125 Fla. 374

HAND, Sheriff v. SMITH.

Florida Supreme Court, Division B.

October 1, 1936

Rehearing Denied Nov. 2, 1936.

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Habeas corpus proceeding by Ira Smith against Harry E. Hand, as Sheriff. To review a judgment discharging petitioner from custody of the Sheriff, on motion to quash return of the writ, the defendant brings error.

Reversed and remanded.

COUNSEL George P. Garrett, of Orlando, for plaintiff in error.

Akerman & Hodges and J. F. Burrow, all of Orlando, for defendant in error.

OPINION

BUFORD Justice.

The writ of error brings for review judgment of the circuit court of the Ninth judicial circuit in and for Orange county, Fla discharging petitioner in habeas corpus from custody of the sheriff on motion to quash return to the writ.

Petitioner alleged that he was unlawfully restrained of his liberty under the 'pretense and by virtue of a certain void warrant issued by the Justice of the Peace of the First District of Orange County, Florida.' A copy of the warrant was attached to the petition.

Petition further alleged that 'no probable cause existed for the procurement or issuance of such warrant.' It further alleged: 'That the bail under which the defendant is being held and being restrained of his liberty is excessive and contrary to the statutes and constitutional provisions of the laws in Florida in such case made and provided.'

The copy of the warrant attached to and made a part of the petition, omitting the style of the case and the signature, is as follows:

'In the Name of the State of Florida, to the Sheriff or any Constable of said County:

'Whereas George Fields has this day made oath before me that on the 15th day of February, A. D. 1936, in the County aforesaid, one

'Ira Smith being then and there the servant and agent of A. W. Spinney & Co. Inc., a corporation of Orlando, Orange County, Florida, did receive into his possession, care custody and control, by reason of his employment as aforsaid Seventy Five Dollars ($75.00) of good and lawful money of the United States of America, a better description of said money being to affiant unknown, of the money, property, goods, and chattels of the said A. W. Spinney & Co. Inc., a Corporation of Orlando, Orange County, Florida, and did then and there unlawfully and feloneously embezzle and fraudulently convert to his own use the aforesaid money, property, goods and chattels

'Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Florida.

'These are, therefore, to command you to arrest instanter the said Ira Smith and bring him before me to be dealt with according to law.

'Given under my hand and seal this 15th day of February, 1936.'

The return on the sheriff was as follows:

'Endorsement: Received this writ this the 21st day of February, A. D. 1936, and in response thereto bring Ira Smith before the said court, and say that my restraint of him is by virtue of a legal commitment issued out of the Justice of Peace Court 1st District, Orange County, Florida.

'This the 21st day of February, A. D. 1936.

'Harry Hand, Sheriff Orange County, Florida.

'By Joseph E. Brown,

'Deputy Sheriff.'

The judgment entered is as follows:

'This cause came on this day to be heard on motion of the petition to quash the returns on the writ herein and the Court having heard and considered the same and being advised in the premises:

'It is therefore ordered, adjudged and decreed that said motion be and the same is hereby granted and sustained.

'It is further ordered that the petitioner be, and he is hereby released and discharged from custody to go hence with delay.

'It is further ordered that the costs in this cause be, and the same are hereby taxed against Orange County, Florida. Done and ordered in the chambers at Orlando, Orange County, Florida, this 21st day of February, A. D. 1936.'

The transcript does not show that any evidence was taken or that anything was considered by the court below except the copy of the warrant and the return of the sheriff.

The affidavit on which the warrant was based is not included in the record here, but the warrant purports to quote the charge as contained in the affidavit.

So it appears to us that the only question presented for our determination is whether or not the charge as embraced in the warrant is sufficient to constitute a charge of embezzlement under the provisions of section 5146, R.G.S., section 7247, C.G.L. This question must be determined adversely to the contentions of the defendant in error. In fact, it has not been pointed out by the defendant in error wherein the allegations failed to meet the requirements of law.

There is an intimation before us in the briefs that some testimony may have been taken by the circuit judge on the question of probable cause to hold the defendant to answer the charge. But there is nothing in the record to show more than is stated in the judge's order, to wit: 'This cause, coming on this day to be heard on motion of petitioner to quash the return on the writ herein and the court having heard and considered the same and being advised in the premises. * * *'

We are not unmindful of what was said in the case of Ex parte Amos, 93 Fla. 5, 112 So. 289, 291, as follows:

'The writ of habeas corpus is a writ of right. It is sometimes issued upon very informal application. Ex parte Pells, 28 Fla. 67, 9 So. 833. Neither the right to the writ nor the right to be discharged from custody in a proper case is made to depend upon meticulous observance of the rules of pleading. The purpose of bringing the petitioner before the court is to inquire into the legality of his...