Roberts v. State
| Citation | 95 Fla. 182,116 So. 228 |
| Parties | ROBERTS v. STATE. |
| Decision Date | 13 February 1928 |
| Court | United States State Supreme Court of Florida |
Rehearing Denied March 15, 1928.
Error to Circuit Court, Sarasota County; Paul C. Albritton, Judge.
Proceeding by Steve B. Roberts for a writ of habeas corpus, opposed by the State. To review an order refusing to strike a certain portion of a Sheriff's return and remanding the applicant to custody, he brings error. Writ of error dismissed.
Syllabus by the Court
Indictment for murder alleging 'premediated' design to effect death held sufficient on habeas corpus after conviction. An indictment charging a person with the offense of murder, and alleging that the accused 'did then and there unlawfully and from a premediated design to effect the death' of the person killed, is not fatal after trial, conviction, and affirmance of the judgment on writ of habeas corpus.
Habeas corpus cannot serve purpose of writ of error coram vobis or writ of error. A writ of habeas corpus cannot be made to serve the purpose of a writ of coram vobis or writ of error.
Use of 'premediated' for 'premeditated' in indictment for first degree murder may be waived by plea thereto, going to trial, and taking writ of error to judgment without raising point. The use of the word 'premediated' for 'premeditated' in an indictment charging murder in the first degree may be waived by the accused pleading to the indictment, going to trial and taking a writ of error to the judgment in none of which proceedings he raises the point.
Indictment for murder using 'premediated' instead of 'premeditated,' charging intent, held not prejudicially misleading. In an indictment charging murder the word 'premediated,' when used for 'premeditated' in charging the intent, being read in connection with the context, cannot be said to mislead the accused to his injury.
H. P. Philpot, of Sarasota, for plaintiff in error.
Fred H Davis, Atty. Gen., for the State.
The plaintiff in error sought to be discharged upon a writ of habeas corpus from the custody of the sheriff, who detained him by virtue of a commitment from the circuit court of the county. The commitment rested upon a judgment of the circuit court adjudging the petitioner to be guilty of murder in the second degree and sentencing him to a term in the state prison.
A writ of error was taken to that judgment and the Supreme Court affirmed it on the 11th day of July, 1927. See Roberts v. State (Fla.) 113 So. 726.
The sheriff's return to the writ of habeas corpus contained the following sentence:
'Copies of said commitment and reprieve are hereto attached and made a part thereof, said case having been appealed to Supreme Court of Florida and affirmed by that court this court is without jurisdiction.'
The petitioner moved the court to strike from the sheriffs return that portion of it containing the words underscored above. The motion was denied and the petitioner was remanded to the custody of the sheriff. To that order or judgment the petitioner took a writ of error. No evidence was submitted on the hearing. The petition, a copy of the indictment, the return of the sheriff, and a stipulation of counsel to the effect that the petitioner was tried upon an indictment, of which a copy was attached to the petition, was convicted of murder in the second degree, was sentenced to the state prison for a period of years, and that a motion for a new trial was made and overruled, and that the Supreme Court had affirmed the judgment, were before the court in the habeas corpus proceedings.
The petitioner, by his counsel, says that the indictment on which he was tried 'wholly fails to state any offense under the laws of the state of Florida.' The proposition rests upon the use in the indictment of the word 'premediated' in the phrase, 'did then and there unlawfully and from a...
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Jones v. Cook
...75 So. 604, L.R.A.1918B, 1148; State v. Logan, 87 Fla. 348, 100 So. 173; Carroll v. Merritt, 91 Fla. 893, 109 So. 630; Roberts v. State, 95 Fla. 182, 116 So. 228; Crooke v. Van Pelt, 76 Fla. 20, 79 So. Futch v. State, 101 Fla. 328, 134 So. 791; Lehman v. Sawyer, 106 Fla. 396, 143 So. 310. I......
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Hamilton v. State
...corpus is not a corrective remedy, and thus is not always available where a writ of coram nobis would be obtainable. See Roberts v. State, 1928, 95 Fla. 182, 116 So. 228. It also appears that petition for writ of coram nobis on the basis of newly discovered evidence would not come within th......