State Ex Rel. Deeb v. Fabisinski

• Court: Florida Supreme Court
• Writing for the Court: ELLIS, Justice. ELLIS, Justice.
• Citation: State Ex Rel. Deeb v. Fabisinski, 111 Fla. 454, 152 So. 207 (Fla. 1933)
• Decision Date: 18 July 1933
• Parties: STATE ex rel. DEEB v. FABISINSKI, Judge.

152 So. 207

111 Fla. 454

STATE ex rel. DEEB v. FABISINSKI, Judge.

Florida Supreme Court, Division A.

July 18, 1933

Supplemental Opinion July 26, 1933.

Rehearing Denied Oct. 21, 1933.

Prohibition proceeding by the State, on the relation of George J. Deeb and on the relation of Charles J. Deeb, against L. L Fabisinski, as Judge of the Circuit Court of Escambia County Florida.

Prohibition granted.

OPINION

Supplemental Opinion.

COUNSEL A. A. Fisher and Philip D. Beall, both of Pensacola, and B. K. Roberts, of Tallahassee, for relators.

John M. Coe and E. Dixie Beggs, Jr., State's Atty., both of Pensacola, for respondent.

ELLIS Justice.

On the 10th day of June, 1933, George J. Deeb was by order of the county judge of Leon county adjudged to be insane and by said order was committed to the Florida State Hospital, which is located in Gadsden county.

On April 19, 1933, Deeb was arrested in Escambia county on a charge of murder. He was detained until May 23, 1933, when he was released on bond conditioned upon his appearance at the next term of the circuit court for Escambia county to answer the charge of murder. On June 15th, five days after Deeb's committal to the hospital, the grand jury in Escambia county indicted him for murder.

On June 16th Mr. Justice TERRELL, of this court, issued a writ of habeas corpus, returnable before a judge of the circuit court for the Second judicial circuit, for the purpose of inquiring into the cause of the detention of Deeb by the Florida State Hospital, or W. C. Thomas, its superintendent. Service of the writ was made on Thomas the same day and service accepted by him.

Honorable L. L. Fabisinski, judge of the First judicial circuit for Escambia county, on the 16th day of June made and entered an order on petition of the state attorney for the First judicial circuit that W. C. Thomas, superintendent of the Florida State Hospital, produce before circuit court at Pensacola, Fla., at 10 o'clock a. m. on the 19th day of June, A. D. 1933, 'the body of said George Deeb, alias George Deebs, to answer the charge of murder in the first degree in this court and to do and perform such other orders in this cause as may be done herein.' The suggestion for a writ of prohibition alleges that Judge Fabisinski issued a writ of habeas corpus directing the superintendent of the hospital to produce the body of Deeb before the circuit court in Escambia county, and the return of the judge avers that as judge under the terms of the Constitution he 'is under the duty to issue among other writs the writ of habeas corpus and all writs proper and necessary to the complete exercise of the said court's jurisdiction.' The return also avers that the 'writ of habeas corpus so issued by this respondent is the appropriate criminal process of said court necessary and proper to the exercise of the jurisdiction thereof.' It does not appear, however, that a writ of any description was actually issued or attempted to be served.

On suggestion of Deeb through his attorneys, this court on the 17th day of June issued a rule nisi in prohibition to the Honorable 'L. L. Fabinski' (so spelled in the body of the rule, and 'Fabinsinski' in the title) to show cause why a writ of prohibition should not be issued as suggested and that pending the determination of the cause all pending proceedings should be held in abeyance.

The two grounds upon which Deeb asked for a writ of prohibition to be directed against Judge Fabisinski are: First, that the judge, as judge of the circuit court for Escambia, has no authority to issue a writ of habeas corpus returnable before him in Escambis when the person whose detention is to be inquired into under such writ (described in the suggestion as 'the subject matter') is 'outside the jurisdiction' of the judge issuing the writ; that therefore the writ issued by Judge Fabisinski is void. The second ground is that a justice of the Supreme Court having issued a writ of habeas corpus returnable to the judge of the Second judicial circuit and directed to the Florida State Hospital, or Thomas, its superintendent, to inquire into the legality of Deeb's detention, and that such writ was served first, the jurisdiction of the circuit court for the First circuit and any judge thereof was excluded.

On the same date Honorable J. B. Johnson, circuit judge for the Second judicial circuit for Gadsden county, made an order dated at Tallahassee remanding Deeb to the custody of W. C. Thomas, superintendent of the Florida State Hospital, and the Florida State Hospital, to be there held according to law.

On June 22d Judge Fabisinski made a return to the order in prohibition. The return contains averments which in substance are that Deeb was arrested on a charge of murder, released on bond, and then indicted for the offense of murder in the first degree; that Deeb has been committed to the Florida State Hospital as herein before recited. The return avers that on petition of the state attorney a writ of 'habeas corpus ad prosequendum' issued to require the attendance of Deeb at the term of the circuit court for Escambia county at 10 o'clock a. m. on the 19th of June, A. D. 1933, to answer the charge of murder in the first degree in that court 'as will fully appear by a copy of said writ attached hereto and marked Exhibit 'D' and made a part of this return.' Exhibit D is not a copy of a writ of any character. It is merely a copy of an order made by the judge that W. C. Thomas produce the body of Deeb.

The return contains a demurrer to the allegations contained in the suggestion for the writ of prohibition, as that the removal of Deeb would injure his health and 'prejudice his rights' to remove him out of the 'jurisdiction in which the Florida State Hospital is located.' The return urges that the fact of a writ of habeas corpus having been issued by a justice of this court should be pleaded in abatement to the respondent's jurisdiction.

It is contended in the return that as the circuit court for Escambia county has jurisdiction to try the indictment for murder against Deeb, and under article 5, § 11, of the Constitution, and section 8204, C. G. L. 1927, the respondent as judge of the circuit court for Escambia county has jurisdiction to issue all writs and process necessary to the exercise of the court's jurisdiction and that such process runs through the state and has full force and effect therein; that the writ issued is necessary to enable the court to perform 'its legal duty of ascertaining the capacity of the said George J. Deeb to stand trial upon the said charge of murder and if so competent to hear and determine the same.'

The cause came on to be heard and was orally argued before this court on the suggestion for the writ of prohibition, the rule nisi, and Judge Fabisinski's return.

The great writ, known commonly by the name of 'habeas corpus,' was a high prerogative writ known to the common law, the object of which was the liberation of those who were imprisoned without sufficient cause. See Ex parte Watkins, 3 Pet. (U. S.) 193, 7 L.Ed. 650.

It is a writ of inquiry upon matters of which the state itself is concerned in aid of right and liberty. State ex rel. Lasserre v. Michel, 105 La. 741, text 747, 30 So. 122, 54 L. R. A. 927; Ex parte Coupland, 26 Tex. 386.

The name of the writ is 'habeas corpus ad subjiciendum et recipiendum.' It is not an action or suit, but is a summary remedy open to the person detained. It is civil rather than criminal in nature and is a legal and not equitable remedy. See Ex parte Watkins, supra; Ex parte Bollman, 4 Cranch (U. S.) 75, 2 L.Ed. 554.

The early history of the writ is very interesting but unimportant in this discussion. It is sufficient to state that while the writ had been in use in England from remote antiquity, it was often assailed by kings who sought tyrannical power and the benefits of the writ were in a great degree eluded by time-serving judges who assumed a discretionary power in awarding or refusing it and were disposed to support royal and ministerial usurpations. Owing to such abuses, the writ became powerless to release persons imprisoned without any cause assigned. In the fight by the people against the abuses of the writ, petitions of rights were submitted to the king, and during the reign of Charles I, A. D. 1641, provisions were enacted intended to make the writ effectual. These activities were, however, in vain. At last, in 1679, the Statute 31 Chas. II, chap. 2, was enacted. That act is known as the habeas corpus act. That act has been substantially incorporated into the jurisprudence of every state in the Union and the right to it secured by their Constitutions. The Constitution of the United States provides that the privilege of the writ of habeas corpus shall not be suspended except in certain circumstances. Article 1, § 9, par. 2, U.S. Const.

The application for the writ may be made by an agent or friend, wife, husband, or the person detained himself, or by parent for his child, guardian for his ward, or special bail for his principal. In any event, it must be by a friendly person in the interest of the person illegally detained. But mere volunteers who do not appear on behalf of the prisoner or show some right to represent him will not be heard. See Puterbaugh's Pleading and Practice, chap. 14, p. 522. Such is the nature and purpose of the great writ generally known and spoken of as the writ of habeas corpus.

Other writs called 'habeas corpus' were issued and in common experience. They took their names from the characteristic words which they contained when the process and records of the English courts were written in Latin, but they were distinguished from the great writ in question and from one another by the specific...