State v. Dowling
| Decision Date | 30 January 1926 |
| Citation | 107 So. 267,91 Fla. 236 |
| Parties | STATE ex rel. GAYLE v. DOWLING, Sheriff. |
| Court | Florida Supreme Court |
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Proceeding by the State, on the relation of Preston Gayle, for habeas corpus to be directed to W. H. Dowling, Sheriff of Duval County. A demurrer to plaintiff's petition was sustained and plaintiff brings error.
Affirmed.
Syllabus by the Court
Writ of error held to lie to judgment or final order refusing to grant writ of habeas corpus. A writ of error lies to a judgment or final order refusing to grant a writ of habeas corpus.
Constitutional provision that accused shall have right to speedy trial held not to prohibit waiver of such right (Declaration of Rights § 11). While the Constitution secures to an accused 'a right to a speedy trial,' it does not forbid a waiver of such right by the accused.
Constitution and statutes securing accused right to speedy trial held not to require that he shall be tried except in due course of court procedure. The organic provision and effectuating statutes that secure to an accused 'a right to a speedy trial' do not contemplate or require that an accused shall be tried except in due course of the court procedure that is provided for the trial of persons charged with crime.
In criminal prosecution, state is plaintiff and also may have custody of accused; state is not responsible for failure to juries to agree on verdicts, or for inability of accused to secure bail permitted by law. In criminal prosecutions, the state is the plaintiff and also may have the custody of the accused. This is essential for the protection of society. The state is not responsible for the criminal act charged, or for the failure of juries to agree upon verdicts, or for the inability of an accused to procure bail when it is permitted by law.
If trial is had in due course, and, on failure of jury to agree mistrial is entered and jury discharged with continuance accused is not entitled to discharge, even if there have been three mistrials and continuances (Const. art. 5, § 26; Rev. Gen. St. 1920, §§ 5962, 6057). Under existing law, where a trial is had in due course of law and of appropriate court procedure, and, the jury failing to agree upon a verdict, a mistrial is entered and the jury is discharged, with a continuance of the case for the term as provided or contemplated by law, the accused is not entitled to a discharge 'from the crime,' even if there have been three such mistrials and continuances at successive terms of the court.
In absence of showing that, in trials in which jury disagreed, continuance was arbitrarily ordered without accused's acquiescence, he may not ordinarily be released from custody on reduced bail or without bail. Where it does not appear that in trials had, where the jury failed to agree on a verdict, a continuance was arbitrarily ordered without the acquiescence of the accused, he may not ordinarily be released from custody on reduced bail or without bail.
Chester Bedell, of Jacksonville, for plaintiff in error.
J. B. Johnson, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for defendant in error.
In a petition filed in the circuit court for Duval county for a writ of habeas corpus, it is alleged that the petitioner was, on June 11, 1925, charged with first degree murder of his father, and upon preliminary hearing that day was committed without bail; that on June 18, 1925, in habeas corpus proceedings bail was fixed in $2,500; that on June 25, 1925, he was charged in the criminal court of record for Duval county, Fla., with murder in the first degree; that on July 30, 1925, the petitioner was brought to trial, and, the jury disagreeing, a mistrial was entered and the cause continued for the term; that on September 29, 1925, the petitioner was again brought to trial, and, the jury disagreeing, a mistrial was entered and the cause continued for the term; that on November 30, 1925, the petitioner was again brought to trial, and, the jury disagreeing, a mistrial was entered and the cause continued for the term; 'that by reason of the premises' petitioner 'is unlawfully deprived of his liberty,' and asks to be 'forever discharged from the crime'; and, further alleging that petitioner is unable to make the required bond, asks that 'such judgment be given as may be in accordance with law.'
The court sustained a demurrer to the petition, and allowed a writ of error, which was taken.
A writ of error lies to a judgment or final order refusing to grant a writ of habeas corpus. Keen v. Murray, 77 So. 855, 75 Fla. 154; Lee v. Van Pelt, 48 So. 632, 57 Fla. 94; Ex parte Edwards, 11 Fla. 174; Baender v. Barnett, 41 S.Ct. 271, 255 U.S. 224, 65 L.Ed. 597. An order sustaining a demurrer to a petition for a writ of habeas corpus may be a final order to which a writ of error would lie, where the order does not contemplate an amendment to the petition or other proceedings in the cause in the same court or before the same judge.
The Constitution and statute provide that there shall be six terms of the criminal courts of record in each year. Section 26, art. 5, Const.; section 5962, Rev. Gen. Stats. 1920.
Section 6057 of the Revised General Statutes, provides:
'If any person be committed for felony and shall apply to the court by motion on the first day of the term and shall...
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Robertson v. State
...S.E. 629; Sedgwick, Stat. and Const. Law, p. 111; 6 R. C. L. 93; 27 R. C. L. 906. See, also, as illustrating the principle, State v. Dowling (Fla.) 107 So. 267. The underlying the rule just stated differ from those which occasion the rule forbidding the waiver by an accused of certain const......
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Murray v. Wainwright, 29715.
...to a trial in the due course of orderly court procedures provided for trial of persons charged with a crime. State ex rel. Gayle v. Dowling, 91 Fla. 236, 107 So. 267 (1926); Klopfer v. North Carolina, 10 For a thoughtful discussion of that issue, see United States v. Haggett, 438 F.2d 396, ......
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...321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834, 839; Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83; State ex rel. Gayle v. Dowling, 91 Fla. 236, 107 So. 267. Under the circumstances reflected by this record it was unnecessary to present the stipulation to the trial judge befor......
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...must not be delayed longer than the time limitation provided by the speedy trial statute. This Court decided in State ex rel. Gayle v. Dowling, 91 Fla. 236, 107 So. 267 (1926), that a mistrial constituted a trial under Section 6057, Rev.Gen.Stat.1920, a predecessor of Fla.Stat. § 915.01(1),......