Reffkin v. Mayo

• Decision Date: 09 June 1934
• Citation: 155 So. 674,115 Fla. 214
• Parties: REFFKIN CHAPMAN, Superintendent of State Prison v. MAYO et al. CHAPMAN, Superintendent of State Prison v. CHASE.
• Court: Florida Supreme Court

155 So. 674

115 Fla. 214

REFFKIN CHAPMAN, Superintendent of State Prison v. MAYO et al. CHAPMAN, Superintendent of State Prison v. CHASE.

Florida Supreme Court, Division A.

June 9, 1934

Proceedings by J. W. Chase, alias John Reffkin, for a writ of habeas corpus to L. F. Chapman, as Superintendent of the State Prison. To review a judgment discharging petitioner from respondent's custody, respondent brings error, and petitioner applies to the Chief Justice of the Supreme Court for a writ of habeas corpus to Nathan Mayo, Commissioner of Agriculture, and such Superintendent.

Motion to dismiss the writ of error denied, and petitioner remanded to respondent Superintendent's custody to await the Supreme Court's decision on the question presented by the writ of error.

BROWN J., dissenting in part.

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

H. A Henderson, of St. Augustine, and J. V. Walton, of Palatka for defendant in error.

OPINION

ELLIS Justice.

John Reffkin, under the name of J. W. Chase, was indicted by the grand jury of St. Johns county on January 10, 1930, as principal in the second degree to a fraud alleged to have been perpetrated by G. L. Robinson upon J. D. Sinclair. The proceeds from such fraud were alleged to amount to the sum of $40,000. The offense charged in the indictment is defined by chapter 8466, Acts of 1921, now sections 7308, 7309, and 7310, Compiled General Laws 1927.

On a trial of the charge made in the indictment which occurred on January 6, 1933, Reffkin was convicted and sentenced to pay a fine of $10,000 and be confined at hard labor in the state penitentiary for a period of five years, and in default of the payment of the fine to be confined at hard labor in the state penitentiary for an additional period of two years. See Reffkin v. Boyce, Sheriff, 104 Fla. 221, 139 So. 578, 141 So. 311.

Before conviction Reffkin sought his discharge from custody on proceedings in habeas corpus on the ground that the indictment charged no criminal offense under the laws of the state. He was remanded to custody and took a writ of error. The above-cited cases contain a record of those proceedings.

On January 20, 1933, Reffkin's attorney prepared a petition in his behalf for a writ of habeas corpus to be directed to L. F. Chapman as superintendent of the state penitentiary. The venue of the petition was laid in Union county in the Twenty-Sixth judicial circuit.

The petitioner sought his discharge from the penitentiary upon the grounds that Robinson, the person charged as principal in the commission of the felony, had never been tried for the offense; that the act under which the indictment was framed was void and inoperative, and that its provisions did not authorize the sentence of him to imprisonment in the state prison; that the alleged offense was not a felony; that the nature of the offense alleged to have been committed was such that the petitioner could not have been accessory, conspirator, or principal in the second degree to the person charged as principal, and that the minutes of the court failed to show the presence of the prisoner in court when the verdict of the jury was returned.

An affidavit was made in Union county on the following day, which was January 21, 1933, affirming that Honorable A. Z. Adkins, judge of the circuit court for the Twenty-Sixth circuit, in which Union county is located, was absent from the circuit and that the affidavit was made to 'confer jurisdiction upon the Honorable Fred L. Stringer, Circuit Judge in and for the Twenty-Fourth Judicial Circuit.'

That affidavit was filed before Judge Stringer on the same day and at the same time the petition for a writ of habeas corpus was also submitted to him.

The writ was issued, and on that date Chapman made his return in which he averred that he was detaining Reffkin in the state prison under authority of a commitment issued from the circuit court for St. Johns county.

Judge Stringer on the same day made an order discharging the petitioner from custody.

The petition, affidavit, return of Chapman, and the judge's order were afterwards on the 26th day of January, 1933, filed in the office of the clerk of the circuit court for Union county in the Twenty-Sixth circuit.

On February 3, 1933, Hon. Fred L. Stringer, judge of the Twenty-Fourth circuit, made an order in the same case purporting to rescind and vacate the order of January 21, 1933, discharging the petitioner from custody. In the order of February 3d the judge described the order of discharge as of the date of January 22d. This is evidently a clerical error, as no order bearing such a date appears in the transcript.

The last order recites, apparently by way of explanation, why he assumed to make any other order in the case. The explanation was as follows: 'This Court does not have any information that the Judge of the Twenty-sixth Circuit was not absent at the time and for this reason assumes the jurisdiction to make this order.'

It is obvious that such reasoning is vain and wholly without merit to justify the exercise of jurisdiction by a judge of one circuit over a cause pending or which has been disposed of in a different circuit.

The authority of one circuit judge to perform the duties which devolve upon the judge of another and different circuit because of the latter's absence from the circuit to which he is assigned exists by virtue of section 4348, Comp. Gen. Laws 1927 (section 2681, Rev. Gen. St. 1920).

In the proceedings in habeas corpus before Judge Stringer, acting pro hac vice for Judge Adkins of the Twenty-Sixth circuit, the necessary affidavit was made as to the absence from Union county of Judge Adkins. See Keen v. Polk, 72 Fla. 106, 72 So. 788.

The consideration of the petition by Judge Stringer under the provisions of the statute mentioned did not operate as a change of venue. See City of Jacksonville v. Dorman, 13 Fla. 390; State v. Hocker, 35 Fla. 19, 16 So. 614.

So the order of discharge was made by Judge Stringer in place of Judge Adkins, who was at that time absent from his circuit. There Judge Stringer's authority ceased. There is no authority in law for the revival of that authority ten days after it had been exercised because he desired to revoke the order of discharge made by him on the ground that no information had come to him that Judge Adkins had returned to his circuit.

The reason set forth in the order for making it need not be noticed save to observe that it may have been observed when the order of discharge was made or when the petition was submitted, but the failure to observe it did not render the order of discharge void.

The order discharging the petitioner was duly made in the exercise by the judge of the power vested in him under the statute, the provisions of which the petitioner and his attorneys difinitely availed themselves. It is immaterial how the order was signed.

We hold that in the circumstances the petition for the writ of habeas corpus was submitted to Judge Stringer under the provisions of section 4348, Comp. Gen. Laws, supra, and not under the provisions of section 5435, Comp. Gen. Laws 1927, empowering circuit judges in vacation or in term time upon application of one detained in custody to grant a writ of habeas corpus signed by himself and make same returnable immediately before him or any of said courts, justices, or judges as the writ issued may direct. We decide this point here in passing because of the position later on taken in the progress of this strange case by counsel for petitioner, who at a different time and to sustain a motion to dismiss a writ of error allowed by the Chief Justice to the Attorney General to be taken to the order of discharge of Reffkin asserted that the order of discharge was made in a cause pending in the Twenty-Fourth circuit before Judge Stringer and not a cause pending in the Twenty-Sixth circuit for Union county to which court the writ was directed commanding the sending up of the record.

The position should not be sustained because the record in the habeas corpus proceedings discloses that the petitioner by his counsel sought the decision of the judge of the Twenty-Fourth circuit because of the absence of Judge Adkins from the Twenty-Sixth circuit and under the provisions of section 4348, Comp. Gen. Laws, supra. The two positions are inconsistent and should not be attempted to be maintained, the one for one purpose and the other for another purpose.

In the order of February 3, 1933, by which Judge Stringer attempted to vacate the order made by him in place of Judge Adkins absent from his circuit on January 21, 1933, the court directed the rearrest of Reffkin and his delivery to the custody of the superintendent of the state prison.

That order was invalid, made without any authority of law, without notice to petitioner or his counsel, and apparently without motion, but sua sponte by the court apparently upon the theory that the case having been submitted to him because of the absence of Judge Adkins from the circuit in which the cause was pending, the absence of the latter judge from his circuit was presumed to continue so long as the 'judge pro hac vice' might desire for any reason at a later date to make another order in the cause until such time at least as information should come to him of the return of the judge to his circuit.

Many months later Reffkin was rearrested upon authority of the order of Judge Stringer made on February 3, 1933, and delivered to the superintendent of the state prison. Thereupon he applied by his attorneys to the Chief Justice of this court for a writ of habeas corpus to be directed to L F. Chapman as superintendent of the state prison requiring him to...