Lee v. Van Pelt

• Decision Date: 26 January 1909
• Citation: 57 Fla. 94,48 So. 632
• Parties: LEE v. VAN PELT, Sheriff.
• Court: Florida Supreme Court

48 So. 632

57 Fla. 94

LEE v. VAN PELT, Sheriff.

Florida Supreme Court, Division B.

January 26, 1909

Application of Oscar Lee for writ of habeas corpus against James C. Van Pelt, sheriff. From a judgment denying the writ, he brings error. Affirmed.

Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Syllabus by the Court

SYLLABUS

Where a party is confined in jail under a commitment issued upon an affidavit charging the offense in positive terms, the commitment and affidavit being in proper form, it is not competent for him in habeas corpus proceedings to question the legality of his arrest by showing simply that the prosecuting witness or witnesses had no personal knowledge of the facts stated in the affidavit, and thereby attempting to show a want of probable cause.

While the writ of habeas corpus is a writ of right in the enlarged sense of the term, it does not issue of course, but reasonable grounds must exist for awarding it; and, if it appears on the face of the petition that the party in custody would only be remanded, the writ should be denied.

COUNSEL J. P. Stokes, for plaintiff in error.

Park M Trammell, Atty. Gen., for the State.

OPINION HOCKER, J.

The plaintiff in error filed the following petition with the circuit judge of the First Judicial circuit in and for Escambia county:

'Your petitioner, Oscar Lee, of Pensacola, Fla., respectfully shows unto your honor as follows, to wit:

'(1) That he is confined in the county jail of Escambia county Fla., by the jailer of said county, James C. Van Pelt sheriff of Escambia county, Fla., and deprived of his liberty, by virtue of a certain commitment issued by the justice of the peace of the Second district of Escambia county, Fla., wherein it is alleged that a certain affidavit of complaint had hitherto been made by one Chas. W. Johnson, wherein this petitioner is charged with having on the 11th day of December, A. D. 1908, committed the crime of petit larceny.

'(2) That said commitment is based upon an affidavit of the said Chas. W. Johnson, a deputy sheriff of Escambia county, Fla., wherein it is alleged that on December 11, A. D. 1908, in the Second justice district of Escambia county, Fla., the petitioner, of the personal property of the Pensacola Grocery Company, a corporation, did feloniously steal, take, and carry away property of the value of $2. A copy of said affidavit is hereto attached.

'(3) That there was not before the said justice of the peace at the time of the issuance of the said warrant, based upon said affidavit, probable cause to justify the issuance of said warrant. That the said Chas. W. Johnson was absolutely and totally without knowledge of the matters and things set up in said affidavit.

'(4) That the Pensacola Grocery Company conducts its business in the city of Pensacola, Fla., with its officers and agents thereat.

'(5) That this petitioner is not guilty of the offense charged in said affidavit, and that there was and is not probable cause to believe him to be so guilty.

'Your petitioner is advised and believes, and therefore alleges, that his detention and deprivation of his liberty as hereinbefore set forth is without authority of law and in violation of section 22, Declaration of Rights, Constitution of Florida.

'The premises considered, your petitioner prays that a writ of habeas corpus do issue requiring the said James C. Van Pelt, sheriff of Escambia county, Fla., to produce before your honor at some time certain to be therein stated the body of your petitioner, with the time and cause of his caption and detention, and that your petitioner be discharged custody, etc.

'[Signed] J. P. Stokes,

'Attorney for Petitioner.'

'State of Florida, County of Escambia.

'Before the subscriber personally appeared Oscar Lee, who, being by me first duly sworn, says that he is the petitioner in the foregoing petition; that he has heard read over the said petition and is familiar with the contents thereof; that the allegations therein contained are true, except as to those matters stated upon information and belief, and as to them he says he believes then to be true.

'[Signed] Oscar Lee.

'Sworn to and subscribed before me this 12th day of December, A. D. 1908.

'[Signed] R. Pope Reese, Notary Public.'

Exhibit A:

'Affidavit of Complaint.

'State of Florida, County of Escambia.

'Before the subscriber, a justice of the peace, in and for said county, personally came C. W. Johnson, who, being first duly sworn, says that Oscar Lee did, in said county, on the 11th day of December, A. D. 1908, did of the property of the Pensacola Grocery Company, a corporation, of the value of two dollars, unlawfully take, steal and carry away, to-wit: 1 ham, $1.00; 5# lard, 75c; 1 can peaches 25c. Against the peace and dignity of the state, contrary to the statutes in such cases made and provided.

'[Signed] C. W. Johnson.

'Sworn to and subscribed before me this 12th day of December, 1908.

'[Signed] R. L. Nickelsen, J. P. [Seal.]'

The circuit judge denied this petition, and made an order granting petitioner a writ of error. The case is here on writ of error for a review of the action of the circuit judge.

There is no contention her on part of the plaintiff in error that either the commitment or the affidavit is not in proper form. The crime of petit larceny is not charged on 'information and belief,' but in positive terms. The circuit judge was invited to investigate and determine that Chas. W. Johnson who made the affidavit 'was absolutely without knowledge of the matters and things set up in the affidavit,' and therefore there was not probable cause for the issuance of the warrant by the justice of the peace. It is not contended that the justice did not have jurisdiction to issue a warrant in the case, if the affidavit as presented to him supplied 'probable cause' within the meaning of section 22 of the Bill of Rights (Constitution of 1885). That section is as follows: 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches shall not be violated and no warrants issue but upon probable cause supported by oath or affirmation particularly describing the place or places to be searched, and the person or persons, and thing or things to be seized.'

In support of his contention the plaintiff in error cites several cases, but none of them seem to be strictly applicable to this case.

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