Lehman v. Sawyer

• Decision Date: 06 August 1932
• Citation: 143 So. 310,106 Fla. 396
• Parties: LEHMAN, Sheriff v. SAWYER.
• Court: Florida Supreme Court

143 So. 310

106 Fla. 396

LEHMAN, Sheriff v. SAWYER.

Florida Supreme Court, Division A.

August 6, 1932

Error to Circuit Court, Dade County; H. F. Atkinson, Judge.

Petition by Alfred Sawyer for a writ of habeas corpus to M. P. Lehman as Sheriff of Dade County. To review an order discharging petitioner from custody, respondent brings error.

Reversed and remanded.

COUNSEL Cary D. Landis, Atty. Gen., and H. E. Carter and Roy Campbell, Asst. Attys. Gen., for plaintiff in error.

Mitchell D. Price, Charles W. Zaring, Fred J. Cohn, and Robert S Florence, all of Miami, for defendant in error.

OPINION

BROWN J.

The defendant in error, Alfred Sawyer, petitioner in the court below, filed his petition for writ of habeas corpus, alleging that he was being unlawfully restrained by the sheriff of Dade county upon an information issuing out of the criminal court of record in and for Dade county charging petitioner with unlawfully catching certain fish in the salt waters of the state of Florida within said county of Dade, with a certain seine and net of less size than one and one-half-inch bar, measured from knot to knot, and a stretch mesh of less than three inches from knot to knot, after being tarred and shrunk, contrary to the form of the statute in such cases made and provided.

The information set forth in the petition clearly charged a violation of section 8053, Comp. Gen. Laws of 1927, derived from chapter 6877 of the Acts of 1915.

However the petition alleges that the information charges no offense against any valid act of this state. This allegation of the petition is clearly untenable and has not been insisted upon in argument.

The petition was amended so as to allege that the fish alleged to have been caught by the petitioner were in truth and in fact caught by him in the waters of the Atlantic Ocean a mile or more from the outside shore where the waters were flowing northward and in what petitioner considered to be a portion of the Gulf Stream; that the fish so caught were in the opinion of the petitioner not caught within the boundaries of the state of Florida as defined by the Constitution of the state.

Sheriff Lehman filed a return alleging that he held Sawyer under and by virtue of a capias issued by the clerk of the criminal court of record, in which capias it is recited that the said Alfred Sawyer is charged in an information filed by the county solicitor of Dade county, Fla., the return setting forth the allegations of such information in the same language as appeared in the petition.

Upon the hearing before the circuit judge, the petitioner testified that he caught the fish with a seine of the kind described in the information, just a few days before the information was filed, at a point in the waters of the Atlantic Ocean about one mile east of the shore of Miami Beach at about Tenth street of said Miami Beach; that the fish were caught at a point where the waters were flowing north with the Gulf Stream; and that to the best of his judgment they were caught east of the western edge of said Gulf Stream.

Petitioner also filed in evidence a chart said to be in use by the United States Navy, which purported to show the course of the Gulf Stream along the eastern shore of Florida. No further evidence was introduced. The circuit judge made an order discharging the petitioner from custody, in which he incorporated an interesting opinion leading up to the conclusion that the fish caught by the petitioner were not caught within the salt waters of the state of Florida, nor in waters within the jurisdiction of the state or county, and that therefore the statute under which the prosecution was brought did not apply.

Upon motion the circuit judge made an order allowing a writ of error, which writ was duly sued out by the respondent sheriff to this court, thus bringing the said order before us for review.

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 failed 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. In re Robinson, 73 Fla. 1068, 75 So. 604, L. R. A. 1918B, 1148; Spooner v. Curtis, 85 Fla. 408, 96 So. 836. Upon the writ of habeas corpus, the question of the guilt or innocence of the petitioner, although the indictment is defective or inartistically drawn, will not be considered by the court. The writ is designed to test solely the question of the legality of petitioner's imprisonment. Ex parte Amos, 93 Fla. 5, 112 So. 289; Chase v. State, 93 Fla. 963, 113 So. 103, 8th headnote, 54 A. L. R. 271; White v. Penton, 92 Fla. 837, 110 So. 533, 535. In the case last cited this court, speaking through Mr. Justice Strum, said:

'No point is made either against the form of the process under which petitioner is held or the jurisdiction of the committing magistrate. Petitioner asserts, however, that the possession of mullet lawfully acquired in Alabama and subsequently brought into Florida is not an offense within the scope of the act, and that because the fish in his possession were so acquired, he is not charged with an act which is made an offense by law, and hence is entitled to his discharge on habeas corpus. See Ex parte Prince, 27 Fla. 196, 9 So. 659, 26 Am. St. Rep. 67; In re Robinson, 73 Fla. 1968, 75 So. 604, L. R. A. 1918B, 1148. This contention assumes that petitioner is charged with the unlawful possession of mullet lawfully acquired in Alabama. But that is not the case. If it were, a different question might be presented. The charge against petitioner is that on a named date he 'did then and there unlawfully have in his possession mullet of smaller size than ten inches in length, contrary to the form of the statute,' etc. That the act prohibits as unlawful the possession of mullet of less than the size specified, when caught in the waters of Florida, is not questioned. The charge as made therefore does not wholly fail to state an offense under the statute, within the rule stated in Ex parte Prince, supra, and In re Robinson, supra. On the contrary, the act charged against the petitioner in the affidavit, warrant, and commitment pursuant to which he is detained is clearly an offense under the statute. Even though we might hold that the possession of mullet lawfully acquired in Alabama and imported into Florida was not an offense under the act, the facts stated would not reach the legality of petitioner's detention under the charge made against him, but would merely present a question of petitioner's guilt or innocence of the offense charged; that is, whether or not he has committed that offense. 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 whether he is legally imprisoned, or restrained of his liberty. Horner v. U. S., 143 U.S. 570, 12 S.Ct. 522, 36 L.Ed. 266; Ex parte Crouch, 112 U.S. 178, 5 S.Ct. 96, 28 L.Ed. 690; Cross v. Foote, 17 Ga.App. 802, 88 S.E. 594; Crowley v. Gannon, 21 Ariz. 234, 186 P. 1117; People v. Quigley, 75 Misc. 151, 134 N.Y.S. 953; 29 C.J. 24. 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. State v. Vasquez, 49 Fla. 126, 38 So. 830. See, also, Ex parte Prince, supra, and In re Robinson, supra. Nor is that writ available to review the sufficiency of a

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