State Ex Rel. Tatham v. Coleman

• Decision Date: 19 February 1936
• Citation: 122 Fla. 819,166 So. 221
• Parties: STATE ex rel. TATHAM et al. v. COLEMAN, Sheriff.
• Court: Florida Supreme Court

166 So. 221

122 Fla. 819

STATE ex rel. TATHAM et al. v. COLEMAN, Sheriff.

Florida Supreme Court, Division B.

February 19, 1936

Original habeas corpus proceeding by the State, on the relation of Victor J. Tatham and others, against D. C. Coleman, as sheriff of Dade County, Florida.

Petitioners discharged.

COUNSEL

Vincent C. Giblin, J. W. Watson, Jr., Abe Aronovitz and Hughes & Reeder, all of Miami, for petitioners.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for respondent.

OPINION

BUFORD Justice.

On January 17, 1936, a justice of this court issued writ of habeas corpus to the respondent Coleman, as sheriff, on petition of Orville Rigby, C. H. Reeder, E. G. Sewell, and A D. H. Fossey, who each alleged that he was unlawfully restrained of his liberty by D. C. Coleman, as sheriff of Dade county, Fla., under a capias issued under a certain pretended indictment filed in the circuit court of Dade county, Fla., on August 16, 1935, and that the said pretended indictment charges no offense under the laws of the state of Florida.

The return admits that the petitioners are each held under a capias issued as alleged, and under no other.

The case is before us on motion to discharge each of the petitioners, the return notwithstanding.

The sole question for our determination is whether or not the indictment which is made a part of the petition in each instance charges any offense against the laws of the state of Florida. The charging part of the indictment is as follows:

'That on the twentieth day of April, A. D. 1934, Victor J. Tatham, C. H. Reeder, A. D. H. Fossey, Orville Rigby and E. G. Sewell did unlawfully conspire, combine, agree and confederate together to cheat and defraud the City of Miami, Florida, a municipal corporation of its money, goods and chattels, to-wit: certain tax sale certificates of the aggregate value of Ninety-seven thousand Dollars ($97,000.00) by unlawfully pretending to sell, convey and transfer to the City of Miami, Florida, certain lands in Dade County, Florida, to wit:

'A. The East one-half (E 1/2) of the Northeast one-quarter (NE 1/4) of the Northwest one-quarter (NE 1/4) of Southeast one-quarter (SE 1/4) of Section 20, Township 54 South, Range 41 East, containing five acres, more or less, in the Coconut Grove colored district, and Lots 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, and 72 of Parry's Resubdivision of Block 8 of Jape's or Sost's Addition, and

'B. Lots 33 and 40 of Parry's Resubdivision of Block 8 of Jape's or Sost's Addition, being a tract of land in the City of Miami colored district,

--subject to a mortgage encumbering that part of said land mentioned in Parry's Resubdivision of Block 8 of Jape's or Sost's addition, in the sum of Eighteen Thousand Dollars ($18,000.00) in exchange for ninety-seven thousand dollars ($97,000.00) worth of tax sale certificates of the City of Miami, Florida, at a grossly, excessive, exorbitant and fictitious value, and to the detriment, injury and loss to the said City of Miami in that on the said twentieth day of April, A. D. 1934, the said C. H. Reeder, A. D. H. Fossey, Orville Rigby and E. G. Sewell were then and there the duly elected, qualified and acting Commissioners of the City of Miami, Florida, and did agree with the said Victor J. Tatham, that he, the said Victor J. Tatham, should offer for sale to the City of Miami the lands hereinabove described by a certain offer in writing in words and figures following, to-wit:'

Then follows copy of the contract referred to, after which the following appears:

'And that the said Commissioners, C. H. Reeder, A. D. H. Fossey Orville Rigby and E. G. Sewell should accept said offer by the adoption of a Resolution at a meeting of the Commission of the City of Miami to be held on a subsequent date, whereby the said City of Miami should pretend to purchase the said land at and for the purchase price of Twenty-Nine Thousand and Forty-One Dollars and twenty-three cents ($29,041.23) and that a certain corporation namely the Sivort Co., a corporation organized and existing under the laws of the State of Florida, should pretend to sell and convey and said lands to the City of Miami in consideration of said sum of Twenty Nine Thousand and Forty One Dollars and Twenty three cents ($29,041.23), and that the said Victor J. Tatham and the Sivort Co. should purchase certain tax certificates of the City of Miami for the year 1931 of the aggregate principal amount of Twenty Two Thousand Dollars ($22,000.00) and certain tax certificates of years prior to 1931 of the aggregate principal amount of Fifty Thousand Dollars ($50,000.00) at and for a purchase price of Five Thousand Dollars ($5,000.00), the said Victor J. Tatham and the said C. H. Reeder, A. D. H. Fossey, Orville Rigby and E. G. Sewell then and there well knowing that the said land so offered to be sold to the City of Miami and conveyed in exchange for the aggregate value of the certificates aforesaid was not then and there owned by the said Victor J. Tatham, the Sivort Co. nor either of them, and that the said Victor J. Tatham and the Sivort Co. had no right, title, equity, interest or demand in or to the said land except a right and privilege to purchase the same of and from the owner thereof, and the said Victor J. Tatham and the said C. H. Reeder, A. D. H. Fossey, Orville Rigby and E. G. Sewell then and there well knowing that the said land so pretended to be sold but in reality intended to be exchanged for tax certificates, was not then and there of the fair value of the mortgage against said land which it was intended the City of Miami should assume, and that thereafter, in order to effect and carry out the provisions, terms and conditions of the said conspiracy, agreement and combination between the said Victor J. Tatham and C. H. Reeder, A. D. H. Fossey, Orville Rigby and E. G. Sewell, the said Commissioners C. H. Reeder, A. D. H. Fossey, Orville Rigby and E. G. Sewell, did cause one A. E. Fuller then and there the Director of Finance of the City of Miami and the officer, agent, servant and employee of the said City, to write, execute and deliver unto the Guaranty Title and Abstract Corporation of the City of Miami, a certain check dated the 7th day of May, A. D. 1934, payable to said Guaranty Title and Abstract Corporation in the amount of Twenty-Nine Thousand and Forty One Dollars and twenty-three cents ($29,041.23) in order that the said Guaranty Title and Abstract Corporation could use the amount of said check to pretend to purchase from the City of Miami certain tax certificates of the aggregate value of Twenty-Nine Thousand and Forty One Dollars and Twenty-three cents ($29,041.23) and did cause the said A. E. Fuller, the officer, agent, servant and employee of the said City of Miami, to also deliver unto the said Guaranty Title and Abstract Corporation tax certificates in the principal amount of Seventy Seven Thousand Dollars ($77,000.00) so that the same could be sold and assigned to other persons subject to the orders of him the said Victor J. Tatham in order that he, the said Victor J. Tatham, could realize from the sale thereof sufficient funds to pay the City of Miami Five Thousand Dollars ($5,000.00) for the pretended purchase price of Fifty Thousand Dollars ($50,000.00) worth of certificates so delivered unto the Guaranty Title and Abstract Corporation for the use and benefit of him the said Victor J. Tatham, and in order further to realize the monies necessary to make the down payments upon the land hereinabove described to the owners thereof, in the amount of Forty-Five Hundred...