Kelly v. State ex rel. Leonard

• Decision Date: 10 October 1956
• Parties: Thomas J. KELLY, as Sheriff of Dade County, Appellant, v. The STATE of Florida ex rel. Frank K. LEONARD and R. R. Russell, Appellees. Thomas J. KELLY, as Sheriff of Dade County, Appellant, v. The STATE of Florida ex rel. Earle M. RADAR, Appellee. Thomas J. KELLY, as Sheriff of Dade County, Appellant, v. The STATE of Florida ex rel. R. R. RUSSELL, Appellee. Thomas J. KELLY, as Sheriff of Dade County, Appellant, v. The STATE of Florida ex rel. A. B. CURRY, Appellee.
• Court: Florida Supreme Court

Page 172

92 So.2d 172

Thomas J. KELLY, as Sheriff of Dade County, Appellant, v. The STATE of Florida ex rel. Frank K. LEONARD and R. R. Russell, Appellees.

Thomas J. KELLY, as Sheriff of Dade County, Appellant, v. The STATE of Florida ex rel. Earle M. RADAR, Appellee.

Thomas J. KELLY, as Sheriff of Dade County, Appellant, v. The STATE of Florida ex rel. R. R. RUSSELL, Appellee.

Thomas J. KELLY, as Sheriff of Dade County, Appellant, v. The STATE of Florida ex rel. A. B. CURRY, Appellee.

Supreme Court of Florida, En Banc.

Oct. 10, 1956.

Rehearing Denied Feb. 5, 1957.

Richard W. Ervin, Atty. Gen., Moie J. L. Tendrich, Asst. Atty. Gen., John D. Marsh, County Sol. and A. C. Dressler, Asst. County Sol., Miami, for appellant.

R. K. Bell, Miami, for Frank K. Leonard and R. R. Russell.

Evans, Mershon, Sawyer, Johnston & Simmons, Miami, for Earle M. Rader.

E. F. P. Brigham, Miami, for A. B. Curry.

O'CONNELL, Justice.

These are companion cases. Each was a petition for habeas corpus, the pleadings are identical except for the names of the petitioners, they were filed in the Circuit Court, Dade County, at the same time, one return to the Writs of Habeas Corpus was made applicable to each and the cases were heard together. One order was issued by the circuit court discharging each of the petitioners from custody of the Sheriff, the appellant here, a copy of said order being filed in each of the cases below. The circuit court granted the State the right of appeal from its order the ordered the cases consolidated for purpose of appeal. The appellant, Sheriff of Dade County, appeals from the order discharging the petitioners from custody. The questions in each appeal are identical. All cases will be considered in this one opinion.

The petitioners, appellees here, are four in number. A. B. Curry, was Director of the Dade County Port Authority; Earle M. Rader was County Engineer; R. R. Russell and Frank K. Leonard were officials of Russell House Movers, Inc.

The cases arose from the following facts: The Dade County Port Authority, which administers the Miami International Airport, acquired for expansion purposes a tract of land on which a number of residences and other structures were located. These buildings were sold on bids, however, the purchaser of one residence, which had an attached garage, moved the residence but left the garage on the land of the Authority. The Authority, by written contract, contracted with Russell House Movers, Inc. to move certain warehouses and to remove from the area all temporary structures. The garage in question was ultimately moved by Russell House Movers, Inc. to property in Dade County owned by petitioner Curry.

The County Solicitor, on December 6, 1954, filed an information in the Court of Crimes, Dade County, wherein the four petitioners were charged with Conspiracy to Commit a Felony, to wit: Grand Larceny. The information specified that the goods and chattels involved were a certain one story frame building, i. e. the garage and three steel I beams, all alleged to be the property of Dade County.

On motion of petitioners, as defendants in the Court of Crimes, for a Bill of Particulars the judge of that court granted the motion and ordered the County Solicitor to file a true copy of the contract between the Authority and Russell House Movers, Inc. and a true copy of a letter written by Rader to Curry dated November 11, 1954, some 18 months after the garage was allegedly stolen, which letter pertained to the obligation of Russell House Movers, Inc. to move said garage from the Authority's land. The information referred to both the contract and the letter above mentioned, but did not incorporate the terms thereof by reference or otherwise. In this order requiring the filing of said contract and letter the judge of the court of crimes said that the contract and letter '* * * be considered as supplementing the Information filed in the above cause.'

On December 16, 1954, the information with the contract and letter attached thereto, the four petitions for Writ of Habeas Corpus, the returns to the writs and petitioners' motions for discharge notwithstanding the returns to the writs came on for hearing in the Circuit Court. No testimony was taken, but argument of counsel was had.

In its opinion and judgment the court awarded judgment for the four petitioners and ordered them discharged. These appeals are taken from this order.

The appellant-sheriff raises six questions. However, we feel it necessary to consider only two questions, to wit:

One, whether a bill of particulars to an information is a part thereof so as to be considered by the Court in determining the validity and sufficiency of the information when attacked on habeas corpus.

Two, whether, in habeas corpus proceedings, a court may examine the sufficiency of the evidence to (1) sustain the charges made against a person in an information or (2) to determine the sufficiency of a substantive defense asserted by the accused.

In considering the first question we note that in the order appealed from the trial judge stated: '* * * the contract is a part of the record before the court and can be considered, as I understand it now, as part of the information.'

We think this conclusion was incorrect. The information did not incorporate the contract as a part thereof, nor did the order of the court of crimes have the effect of making the contract a part of the information. The contract and the letter, above referred to, were ordered filed as a result of a motion for bill of particulars. We construe the contract to have been a part of the bill of particulars and not a part of the information.

A bill of particulars is not a part of the pleading and neither strengthens nor weakens an information to which it is attached. In considering the sufficiency of the information it was improper for the circuit court to consider the contract as a part thereof. Middleton v. State, 74 Fla. 234, 76 So. 785 and Kittleson v. State, 152 Fla. 242, 9 So.2d 807.

In arriving at an answer to the second question, as stated above, an examination of the purpose of the writ of habeas corpus reveals that its primary object is to determine the legality of the restraint under which a person is held and is not to determine the sufficiency of the evidence of guilt, or the adequacy of a defense to the crime charged.

This logically means that if one is held under an information which properly and sufficiently alleges facts which constitute a crime, which offense is within the jurisdiction of the court in which the information is filed the restraint of the person is legal.

The prevailing rule, which is followed lowed by this Court, is that the Court on habeas corpus proceedings will not inquire into the sufficiency of the evidence to support an information or indictment. In Sylvester v. Tindall, 154 Fla. 663, 18 So.2d 892, 894, this Court, citing as authority a number of cases decided previously by it, ruled that:

'The general rule is that the object of the writ of habeas corpus is not to determine whether a person has committed a crime, or the justice or injustice of his detention on the merits, but to determine whether he is legally imprisoned or restrained by his liberty. The use of the writ of habeas corpus to test the sufficiency of the evidence upon which a charge may have been based is not sanctioned by this court; nor is that writ available to review the suffiency of a substantive defense. State v. Vasquez, 49 Fla. 126, 38 So. 830; White v. Penton, 92 Fla. 837, 110 So. 533; Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112; Atkinson v. Powledge, 123 Fla. 389, 161 So. 4; State ex rel. Williams v. Coleman, 131 Fla. 872, 180 So. 360; Shelton v. Coleman, 136 Fla. 625, 187 So. 266; Skipper v. Schumacher, 124 Fla. 384, 169 So. 58.'

In Lehman v. Sawyer, 106 Fla. 396, 143 So. 310, we stated that the fact that one held under a valid indictment or information has a good and sufficient defense does not entitle him to discharge on habeas corpus. In that case this Court further stated that habeas corpus could not be used as a substitute for a motion to quash an information or for an appeal.

In Sullivan v. State, Fla., 49 So.2d 794, 797, reiterating the principles above expressed this Court stated:

'While we do not wish to state that the writ of habeas corpus can never, under any possible state of facts, be used to examine the evidence upon which a prosecuting officer acted in presenting an Information, we think that great caution should be used in granting the writ solely for that purpose--not only to insure the orderly course of the administration of the criminal law, but also to prevent the use of the writ as a 'fishing expedition' to discover the state's evidence.'

It is suggested in the cases before us that the charges against the petitioners were 'politically' inspired. If such is true it is regrettable and is a violation of the public trust imposed in those officials who brought the charges. Nevertheless, we have held, and properly so, that evidence that the charges against an accused were made on improper motives and that the accused was not guilty of the crime would not justify his release on habeas corpus, if the information under which he was held stated a crime. Chase v. State, 93 Fla. 963, 113 So. 103, 54 A.L.R. 271.

The rule against testing the sufficiency of...