Sims v. State

• Decision Date: 19 March 1890
• Citation: 7 So. 374,26 Fla. 97
• Court: Florida Supreme Court
• Parties: SIMS v. STATE.

7 So. 374

26 Fla. 97

SIMS v. STATE.

Florida Supreme Court

March 19, 1890

Error to circuit court, Lake county; JOHN D. BROOME, Judge.

Syllabus by the Court

SYLLABUS

An information filed by the prosecuting attorney of the criminal court of record of Lake county, in the office of its clerk in vacation, does not authorize the clerk to issue a warrant for the arrest of the person so accused of crime, nor do such proceedings give the judge of that court power to fix the bail for the person arrested on a warrant thus issued; and a person so held by the sheriff is deprived of his liberty without due process of law, and is entitled to be discharged on habeas corpus.

COUNSEL

A. St. Clair-Abrams, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

RANEY C.J.

This is a writ of error to a judgment rendered by the circuit judge of the sixth circuit in a habeas corpus proceeding.

It appears that the county solicitor of Lake county, who is the prosecuting officer in the criminal court of record of that county, filed in the office of the clerk of that court, on the 4th day of the present month, (March,) an information charging the plaintiff in error with having embezzled $2,100.60, the property of the Florida Central & Peninsular Railroad Company, a corporation under the laws of this state and on the same day a warrant was issued by the clerk commanding the sheriff to arrest Sims, and have him before the judge of the above criminal court of record, at the court-house at Tavares, on the 8th day of April of the present year, to answer the state on an information for embezzlement filed against him by the county solicitor. The sheriff arrested Sims on the same day, and indorsed his action on the writ; and it appears from the transcript before us that Judge GAINES, of the criminal court of record indorsed on the information an order that the prisoner might be admitted to bail in the sum of $2,500, on giving good and sufficient sureties, to be approved by the sheriff.

Sims, while thus in the custody of the sheriff, presented to the circuit judge, on the next day, a petition for a writ of habeas corpus, alleging that he was so detained without lawful authority, and deprived of his liberty without probable cause, and to his right to a preliminary examination; and that the criminal court of record was not in session when the above-mentioned information, upon which the warrant was issued, was filed, nor was it in session at the time of presenting the petition, nor could the term of such criminal court of record, as of which the information is entitled and purports upon its face to be presented, viz., the April term, A. D. 1890, be held for more than a month; that he was innocent of the charge brought against him; that he was until recently agent of the Florida Central & Peninsular Railroad, at Tavares, in Lake county; and that on the 21st of January, 1890, the railroad depot of the company was destroyed by fire, with all its contents, including a large sum of money in the safe belonging to the company, and that because he is unable to replace the money and property so destroyed a charge of embezzlement has been trumped up against him, and he has been arrested and is held in custody as above stated,--there being no evidence to warrant or authorize his arrest, and the same being made for the purpose of terrorizing and intimidating him, and the petitioner being required to give 'enormous and excessive' bail, in the sum of $2,500, which he is unable to do. The petitioner prayed the issuance of the writ, and that the matter of his custody and detention might be inquired into, and he be discharged from custody.

The writ having issued, the sheriff made return to it that he held the petitioner under the warrant described above as issued by the clerk of the criminal court of record of Lake county; and on the 6th day of March the cause came on the be heard upon the above record, and an admission by the county solicitor, upon whom notice of the hearing had been served, that the county criminal court of record of Lake county was not then in session, nor when the information was filed; and the circuit judge refused to permit any evidence of the facts upon which the information was based to be brought before him, and remanded the petitioner 'to the custody of the sheriff, as it appears a criminal court of record of Lake county has jurisdiction.'

To this judgment a writ of error was granted on the next day by a justice of this court, returnable to the court in term at its present sitting.

It is insisted on behalf of the plaintiff in error that the information was unlawfully filed, as it was filed in vacation and not in open court, and that consequently the warrant was issued without authority of law, and the prosecution is not by due process of law, under the twelfth section of the declaration of rights of our constitution.

The constitution provides for the establishment by the legislature of a criminal court of record in any county upon application of a majority of the registered voters; and that there shall be one judge for each of said courts; and that the said 'courts' shall have jurisdiction of all criminal cases not capital which shall arise in said counties respectively; and that there shall be six terms of these courts in each year; and there shall be for each of the courts a prosecuting attorney; and that 'all offenses triable in said court shall be prosecuted upon information under oath to be filed by the prosecuting attorney; but the grand jury of the circuit court for the county in which said criminal court is held may indict for offenses triable in the criminal court, and upon the finding of such indictment the circuit judge shall commit or bail the accused for trial in the criminal court, which trial shall be upon information.' Sections 24-28, art. 5, Const. 1885.

The criminal court of record of Lake county was established by a statute approved May 11, 1889, (Pamph. Laws 1889, p. 169,) which enacts that the court shall have jurisdiction to try and determine all violations of the criminal laws of the state arising in that county, and not punishable by capital punishment; that there shall be held six terms of the court in each year, the same to begin on the second Tuesday in February, April, and the other alternate months; that the said court shall exercise the same power in issuing warrants attachments, and summonses as is had and exercised by the...