In Re Robinson, in Re

Decision Date14 May 1917
Citation75 So. 604,73 Fla. 1068
PartiesIn re ROBINSON.
CourtFlorida Supreme Court

Original habeas corpus by E. E. Robinson against W. H. Dowling Sheriff of Duval County, State of Florida. Petitioner remanded.

Browne C.J., and Ellis, J., dissenting.

Syllabus by the Court

SYLLABUS

Habeas corpus is not a remedy for relief against indictments charging criminal offenses defectively or inartificially though it seems to be a remedy where an indictment charges as an offense an act which, at the time of its commission, the law did not make criminal. In the former case, the detention of the accused is not without jurisdiction, though in the latter it is held to be so on the ground that there is no law punishing the act.

Where habeas corpus is invoked to obtain the discharge of a person held in custody to answer a charge of crime, it must be shown that the statute under which the charge is made is invalid or that the charge as made is not merely defective in its allegations, but wholly fails to state any offense under the laws of the state.

The writ of habeas corpus cannot be used as a substitute for a motion to quash or a writ of error or an appeal.

The right to attack an information by the writ of habeas corpus is more limited than is permitted in motions to quash and in arrest, and may avail only when the offense charged does not constitute a crime under the laws of the state, by reason of the unconstitutionality of the statute invoked or when there is a total failure to allege a crime under any statute; inartificiality in pleading will not avail.

Where an information alleges that the defendant, being the owner of an automobile, did use and operate the same in this state and county more than 15 days without paying the license tax required by law, under the statute requiring a license tax of the owner 'operating' an automobile in this state, and making it a misdemeanor for failure to comply with the statute, if the information is defective because it does not allege that the defendant's automobile was operated upon the public highways of the county, such defect would not render a proper conviction under it illegal or void, even though it may be erroneous. An erroneous judgment of conviction may be reversed on writ of error.

COUNSEL W. T. Stocktion, Thos. B. Adams, and Richard P. Daniel, all of Jacksonville, for petitioner.

Fred. W. Butler, of Jacksonville, opposed.

OPINION

WHITFIELD J.

The following petition was presented to this court:

'Your petitioner, E. E. Robinson, of Jacksonville, Duval county, Fla., complaining says that he is unjustly and unlawfully imprisoned and restrained of his liberty by W. H. Dowling, sheriff of Duval county, state of Florida, by virtue of a certain capias ad respondendum issued out of the criminal court of record of Duval county, Fla., a copy of which said capias, marked 'Exhibit A,' is hereto attached and made a part hereof.

'Your petitioner would further show that the said capias was issued upon an information filed in said criminal court of record by F. W. Butler, the county solicitor of said county, a copy of which said information is hereto attached, marked 'Exhibit B,' and made a part hereof.

'Your petitioner would further show that his said imprisonment and restraint as aforesaid are unlawful for the following reasons, to wit:

'(1) Said information does not charge any offense against your petitioner known to the laws of the state of Florida.

'(2) Said information as framed is vague, indefinite, and uncertain.

'(3) Said information does not show that this defendant used or operated any automobile upon the public roads or highways of said state.

'(4) It does not appear by said information for what year this defendant failed to pay the alleged county license tax.

'(5) It does not appear by said information what was the seating capacity of the alleged automobile or what was the license tax required therefor.

'(6) It does not appear from said information when the alleged 15 days' operation took place, and obviously such 15 days' operation could not have occurred on the day alleged in said information.

'(7) Said information does not negative the procuring of a license for the alleged automobile in some other county of said state.

'(8) Chapter 6881, Laws of Florida 1915, upon which said information is based, is vague and indefinite, in that it does not specify when the license tax therein provided for shall be due and payable or when the same shall be regarded in default for the purposes of a criminal prosecution.

'(9) It is not provided by said act or by any other statute of the state of Florida that the owner of a privately used automobile shall first pay a license tax thereon as a condition precedent to the use thereof.

'(10) There is no prohibition contained in said act or any other statute of the state of Florida against the use of a privately used automobile having procured a license therefor.

'(11) The said act is also vague and indefinite and insufficient to support the said criminal prosecution, in that it does not specifically provide that the owner of a motor-driven vehicle used without charge shall pay a license tax thereon, and such requirement can only be arrived at, if at all, by inference, which is insufficient to support such criminal prosecution.

'(12) The said act is also vague and indefinite, in that it does not specifically designate to which tax collector of the state of Florida a resident of Duval county using an automobile without charge shall pay the license tax specified in said act, nor does said act in such a case indicate or specify which tax collector of the state of Florida would have the right by civil process, or otherwise, to collect such license tax.

'(13) The title of said act limits the requirements of a license for an automobile or other motor vehicle to such motor vehicles as are used upon the public roads or highways of the state of Florida, for which reason the body of said act can be no broader in its application than said title, and the said prosecution cannot be maintained without alleging and proving that the automobile mentioned in said information was used or operated upon the public roads or highways of said state.

'(14) That the said act is otherwise too vague, indefinite, and uncertain to sustain said criminal prosecution brought against your petitioner.

'Your petitioner would further show that something over 1,000 similar prosecutions have been brought by said county solicitor against citizens of Duval county, and the said prosecutions are now pending in the criminal court of record of said county; that a similar prosecution was brought against one Joseph H. Phillips, copy of the capias and information issued and filed against the said Phillips being hereto attached and marked respectively 'C' and 'D' and made a part hereof; that on April 14, 1917, the said Joseph H. Phillips applied to one of the judges of the Fourth judicial circuit in and for Duval county, Fla., for writ of habeas corpus setting forth the objections similar to those hereinbefore pointed out; that after hearing the argument and considering the petition of the said Joseph H. Phillips and the sheriff's return thereto, the judge of said circuit court did remand the said Joseph H. Phillips to the custody of said sheriff; that the matter involved in this petition is of great public importance not only to citizens of Duval county charged as aforesaid, but of wide interest to citizens throughout the state of Florida; that on account of the adverse ruling of said circuit judge your petitioner is without remedy in the premises save by application to this honorable court.'

The information referred to as 'Exhibit B' is as follows:

'In the Criminal Court of Record, of the County of Duval and State of Florida, February Term, in the Year of our Lord One Thousand Nine Hundred and Seventeen.

'State of Florida v. E. E. Robinson. Information for Nonpayment Automobile License.

'In the name and by the authority of the state of Florida:

'Frederick W. Butler, county solicitor for the county of Duval, prosecuting for the state of Florida in the said county, under oath, information makes that E. E. Robinson of the county of Duval and state of Florida, on the 2d day of April in the year of our Lord, one thousand nine hundred and seventeen in the county and state aforesaid, being the owner of a certain automobile and other motor-driven vehicle, did use and operate the same in said state and county more than fifteen days; without paying the county license tax required by law; said automobile and motor-driven vehicle not being used and operated for hire and charge.'

A writ of habeas corpus was issued by the Chief Justice of this court, and the following return was made:

'Comes now W. H. Dowling, sheriff of Duval county, Fla., and waives the service upon him for writ of habeas corpus in the above-entitled cause issued or to be issued upon the petition of said E. E. Robinson, and for return thereto says: That he does have in his custody, as such sheriff, the petitioner E. E. Robinson, and that he holds the said E. E. Robinson by virtue of a certain capias issued out of the criminal court of record in and for Duval county, Fla., copy of which said capias is attached to said petition and marked 'Exhibit A' thereto.

'And for further return says that the said capias was issued upon an information filed by the county solicitor of said Duval county against the said petitioner copy of which said information is attached to the said petition and marked 'Exhibit B' thereto; that the said proceeding, including said capias and said information, constitutes the warrant and authority under and by which the undersigned, as sheriff as aforesaid,...

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