Harrison v. Murphy

• Decision Date: 18 May 1938
• Citation: 181 So. 386,132 Fla. 579
• Parties: HARRISON v. MURPHY, Judge.
• Court: Florida Supreme Court

181 So. 386

132 Fla. 579

HARRISON v. MURPHY, Judge.

Florida Supreme Court, Division B.

May 18, 1938

Error to Circuit Court, Duval County; Bayard B. Shields, Judge.

Original proceeding for a writ of prohibition by J. I. Harrison against W. M. Murphy, Acting and Assigned Judge of the Criminal Court of Record, in and for Duval County, Fla. To review a final order granting a motion to quash the rule nisi and sustaining a demurrer to and dismissing the suggestion for the writ, the plaintiff brings error.

Affirmed.

COUNSEL

Edgar W. Waybright and Carlton C. Arnow, both of Jacksonville, for plaintiff in error.

Cary D Landis, Atty. Gen., Roy Campbell and Tyrus A. Norwood, Asst Attys. Gen., and L. D. Howell and Gov Hutchinson, both of Jacksonville, for defendant in error.

OPINION

BROWN Justice.

Plaintiff in error filed a suggestion for a writ of prohibition in the circuit court of Duval county and that court issued the customary rule to show cause. Defendant in the court below Judge Murphy, filed a motion to quash said rule and a demurrer to the suggestion. This is a writ of error to the circuit court's final order granting the motion to quash the rule nisi and sustaining the demurrer to and dismissing the suggestion for the writ.

Accompanying this order is an able and carefully prepared opinion by Circuit Judge Shields. We find it expedient to set forth that opinion here, as this will afford us the necessary facts and will give us an insight into the reasons for that court's ruling, which we approve:

'In this case the Plaintiff, J. I. Harrison, filed a suggestion seeking a Writ of Prohibition against the defendant, Honorable W.M. Murphy, Acting Judge of the Criminal Court of Record of Duval County, Florida. It appears that the plaintiff Harrison has been convicted in said Criminal Court of Record on an information charging him with tampering with electric meters. Thirty five additional informations have been set for trial before Judge Murphy and the plaintiff in this proceeding seeks to prohibit and prevent his trial on those informations before juries chosen from a panel selected, procured and impaneled in the manner alleged in the suggestion.

'In the case on which he was convicted the plaintiff challenged the array and moved to quash the jury panel. This motion was denied and the plaintiff was tried by a jury chosen from said panel. A similar challenge and motion to quash have been filed as to the jury panel which it is alleged was summoned for the trial of the plaintiff on the remaining thirty five informations and was selected, listed, and procured in the same manner as the jury panel which had been challenged in the case on which he was convicted. This motion has not been ruled upon, but it is alleged that said Criminal Court of Record is about to proceed to try said cases before a jury selected from said panel. It was claimed by the suggestion that said jury panels were and are illegal and invalid on two main grounds.

'It is first claimed that the statute under which the jurors composing said panels, and said panels, were selected, listed, procured and drawn is unconstitutional and void. This statute is chapter 16058, Laws of Florida, Acts of 1933, commonly known as the Jury Commission Law.

'In the second place the plaintiff contends that neither said chapter 16058, nor other laws of Florida, were complied with in certain enumerated particulars in the selection, listing and procurement of the jurors on the panel which is challenged, and that consequently said panel is illegal and void and that a jury chosen therefrom would be illegal and void.

'On the filing of the suggestion this court issued the customary rule to show cause and the defendant Judge Murphy has filed a motion to quash said rule and a demurrer to the suggestion. The case has been argued and submitted by the attorneys for the respective parties and considered by the Court.

'The motion to quash the rule and the demurrer to the suggestion both maintain the constitutionality of said chapter 16058 and deny the sufficiency in law of the suggestion to support the issuance of a writ of prohibition as prayed.

'The constitutionality and validity of the Jury Commission Law, chapter 16058, have been unsuccessfully attacked in two recent cases in the Supreme Court of Florida, State ex rel. Landis, Attorney General v. Harris, 120 Fla. 555, 163 So. 237; and Croissant v. Harris, 121 Fla. 141, 163 So. 470. Following the decisions in those cases this Court holds said Jury Commission Law to be constitutional and valid.

'While the alleged irregularity and noncompliance with law in selecting, listing and procurement of the jurors on said panel may be such as to render it void and illegal, the determination of that issue is rightfully vested in the Criminal Court of Record where said causes are pending.

'The proper function of a Writ of Prohibition is to restrain an inferior Court from acting in a cause in which it is usurping jurisdiction or has no jurisdiction, or in which it is exceeding its jurisdiction or illegally exercising its jurisdiction in such manner that an injury will result for which no other adequate remedy exists.

'High's Extraordinary Legal Remedies, Third Edition, §§ 762 to 767-B, inclusive, pages 705 to 715, inclusive. State ex rel. Rheinauer v. Malone, 40 Fla. 129, 23 So. 575; Crill v. State Road Department, 96 Fla. 110, 117 So. 795; Crandall, Common Law Practice, § 473, p. 662.

'In the present instance the Criminal Court of Record of Duval County has jurisdiction of the parties and the subject matter of said cause and is not shown to have exceeded that jurisdiction. For the supposed error which it is alleged that Court is about to commit the plaintiff has an adequate and complete remedy without the intervention of this Court. When a lower court is acting within its jurisdiction a writ of prohibition should not issue to correct alleged errors made in the exercise of that jurisdiction, for such errors may be corrected by writ of error or appeal. It is clear that if every error claimed to have been committed by the Criminal Court of Record of Duval County in the course of the trial of the vast number of cases, which are disposed of by it annually, could be reviewed on writ of prohibition the constitutional jurisdiction of that court would be impaired, if not destroyed, and an intolerable burden not warranted by law would be imposed on superior courts. People ex rel. Bonfils v. District Court, 29 Colo. 83, 66 P. 1068; In re Hatch, 9 Cal.App. 333, 99 P. 398; Zinn v. District Court for Barnes County, 17 N.D. 128, 114 N.W. 475.

'For the above reasons it is the opinion of this court that the Writ of Prohibition prayed for herein should not be granted.

'A formal order granting the motion to quash the rule and sustaining the demurrer has been made in said cause.'

The constitutionality of chapter 16058 is not properly before the Supreme Court on this appeal, but the primary question is whether or not the circuit judge erred in granting the motion to quash the rule and in sustaining the demurrer.

The rule seems to be well settled that prohibition will not lie to restrain criminal prosecutions when the usual and ordinary forms of remedy are sufficient to afford redress as by motion,...