State v. Peeler

• Decision Date: 09 January 1933
• Parties: STATE ex rel. MELSON v. PEELER, Judge of Criminal Court of Record.
• Court: Florida Supreme Court

146 So. 188

107 Fla. 615

STATE ex rel. MELSON v. PEELER, Judge of Criminal Court of Record.

Florida Supreme Court

January 9, 1933

Rehearing Denied Feb. 17, 1933.

En Banc.

Original proceeding by the State of Florida, on the relation of Ira G Melson, for a writ of prohibition to James M. Peeler, as Judge of the Criminal Court of Record in and for Duval county.

Rule to show cause why the writ should not be awarded quashed.

DAVIS J., dissenting in part.

COUNSEL

R. B. Moseley, of Miami, for relator.

OPINION

WHITFIELD Justice.

By a petition for a writ of prohibition against the judge of the criminal court of record for Duval county, Fla., it is made to appear that two informations were filed in such criminal court of record on March 13, 1931, by L. D. Howell, county solicitor, Duval county, Fla., the informations charging Ira G. Melson with forgery alleged to have been committed on April 15, 1929, and on November 14, 1929. Each of the informations is authenticated as follows:

'State of Florida, County of Duval

'Personally appeared before me, L. D. Howell, County Solicitor for Duval County, Florida, who being first duly sworn, says that the allegations as set forth in the foregoing information are based upon facts that have been sworn to as true, and which, if true, would constitute the offense therein charged.

'L. D. Howell, County Solicitor.

'Sworn to and subscribed before me this Mar. 13, 1931.

'W. D. Parfitt, Clerk Criminal Court.

'[Seal.] By E. J. Butler, Deputy Clerk.'

In his petition sworn to by him, the petitioner alleges: 'That no warrant for his arrest was ever issued, nor was your petitioner ever arrested prior to the filing by said County Solicitor of said purported Informations'; that 'the alleged crimes for which the said County Solicitor is attempting to prosecute your petitioner, were committed, if committed at all, in or during the months of March and April, A. D. 1929, and no prosecution of any kind whatsoever was ever attempted to be commenced against your petitioner until the said 13th day of March, A. D. 1931, at which time the said County Solicitor filed the said two Informations'; that 'no process was ever issued for his arrest until the 23rd day of August, A. D. 1932.'

On August 23, 1932, a capias was issued in each case as follows:

'The State of Florida

'To All and Singular the Sheriffs of the State of Florida, Greeting:

'You Are Hereby Commanded to take Ira G. Melson if he be found in your County, and him safely keep so that you have his body before the Judge of our Criminal Court of Record in and for the County of Duval and State of Florida, at the Court House in Jacksonville, instanter, to answer unto the State of Florida on an information filed against him by the County Solicitor for Forgery and Uttering Forgery, and have you then and there this writ.

'Witness, the Hon. James M. Peeler, Judge, as also D. W. Parfitt, Clerk of said Court, and the Seal of our said Court, at the Court House at Jacksonville aforesaid, this Aug. 23, 1932 day of -----, A. D. 19--.

'L. D. Howall, County Solicitor.

'D. W. Parfitt, Clerk Criminal Court.

'[Seal.] By E. J. Butler, Deputy Clerk.'

The sheriff's return on one capias is as follows:

'Received this Capias the 23 day of Aug. A. D. 1932, by arresting the within named Ira G. Melson and having him now before the Court this --- day of ----- A. D. 19--.

'W. B. Cahoon, Sheriff

'By Frank Edwards, Deputy Sheriff.'

The return on the other capias shows the service was made on the accused August 27, 1932.

The clerk of the criminal court of record certifies that the copies of the informations and capiases in the record here are true and correct copies, and that the informations were filed March 13, 1931, 'and said capiases issued thereon on the 23 day of August A. D. 1932,' and 'that no further papers, constituting any complaint, oath or affirmation, are or appears to be among the files and records of said cause in this office.'

A rule to show cause why a writ of prohibition should not be awarded was issued to the judge, and the sheriff's return thereon is as follows:

'Received this writ on the 2nd day of Dec., A. D. 1932, and executed same on the 3rd day of Dec., A. D. 1932 in Duval County, Florida, by delivering a true copy thereof to the within named defendant, James M. Peeler, Judge of the Criminal Court of Record in and for Duval County, Florida, and at the same time exhibiting this original writ and explaining the contents thereof.

'W. B. Cahoon, Sheriff, Duval County, Florida.

'J. B. Daniel, Deputy Sheriff.'

The judge has made no reply to the rule, but the service of the rule on him authorizes the court to proceed in this cause. See Christie v. Loomis, 32 Fla. 401, 13 So. 891; section 4572(2875) Compiled General Laws.

The informations were sworn to by the county solicitor 'before me * * * D. W. Parfitt, Clerk of Criminal Court, by E. J. Butler, Deputy Clerk.' The deputy is not an officer, but acts for and in the name of the clerk who is an officer. The jurat is not insufficient or illegal. See Summer v. Mitchell, 29 Fla. 179, 219, 10 So. 562, 14 L. R. A. 815, 30 Am. St. Rep. 106; State v. Devine, 6 Wash. 587, 34 P. 154; State v. Rosener, 8 Wash. 42, 35 P. 357; 11 C.J. 915; 1 C.J. 796.

The jurat states 'that the allegations set forth in the' forgery informations 'are based upon facts that have been sworn to as true,' which is sufficient to show the county solicitor filed the informations after appropriate affidavits had been filed as a basis for the informations.

The statute provides that 'all offenses not punishable with death shall be prosecuted within two years after the same shall have been committed.' Section 7113(5011) Compiled General Laws. Under the Constitution, criminal offenders are prosecuted in the criminal courts of record upon informations under oath by the prosecuting attorney, who is by statute called county solicitor. Sections 27 and 28, article 5, Constitution; section 8241(5972) Compiled General Laws.

In this case the informations were filed March 13, 1931, within two years from the dates on which the offenses are alleged to have been committed, one on April 15, 1929, and the other on November 14, 1929; but the capiases were issued on the informations on August 23, 1932, more than two years after the dates on which the offenses are alleged to have been committed.

The statutes provide:

'Informations may be filed with the clerk of the county court and criminal courts of record in vacation, without leave of the court being first had and obtained, and upon information so filed the clerk of said court shall docket cases and issue any and all necessary process, the same as if filed in term time by leave of the court.' Section 8258(5977) Compiled General Laws.

'After any person shall be indicted for felony or for a misdemeanor, or after an information shall be filed against him, if he be not already in custody, a capias shall issue for his arrest and shall be directed to all and singular the sheriffs of the State of Florida.' Section 8375(6070) Compiled General Laws.

The quoted statutes require the issuance of process as a ministerial duty. See Drinkard v. State, 20 Ala. 9, text 13; Scott v. State, 94 Ala. 80, 10 So. 505; 12 Cyc. 378.

It is contended that as a capias or warrant was not issued to the sheriff or other proper officer on either information until more than a year after the informations were filed, and more than two years after the dates of the crimes as charged in the informations, the prosecutions are barred by the two years' statute of limitations (Comp. Gen. Laws 1927, § 7113).

Under the statute, an accused 'shall be prosecuted within two years after the' commission of an offense not punishable with death.

It does not appear that there were, prior to the filing of the informations, any preliminary proceedings on charges against the petitioner for the offenses alleged in the cases here considered, Rouse v. State, 44 Fla. 148, 32 So. 784, 1 Ann. Cas. 317; but the informations were filed within two years from the alleged commission of the offenses. This prevents the bar of the statute unless it is necessary to issue a capias or warrant and place it in the hands of a proper officer for service on the accused as a prerequisite to the commencement of the prosecution based on the filing of an information. There is in this case no showing of a preliminary prosecution prior to the filing of the informations in the criminal court of record.

The decisions of this court indicate that the statutory limitation of two years for a prosecution for an offense 'not punishable with death,' does not bar the prosecution if a sufficient indictment or information is duly filed before the expiration of two years from the date of the commission of the offense. See Weinert v. State, 35 Fla. 229, 17 So. 570; Warrace v. State, 27 Fla. 362, 8 So. 748; Anderson v. State, 20 Fla. 381; Savage v. State, 18 Fla. 970; Nelson v. State, 17 Fla. 195; Rouse v. State, 44 Fla. 148, 32 So. 784, 1 Ann. Cas. 317.

In Indiana and Kansas, where the statutes require the prosecution to be begun within a stated period, the statute is not a bar if an indictment or information is filed before the expiration of the statutory period. Gardner v. State, 161 Ind. 262, 68 N.E. 163; State v. Smith, 72 Kan. 244, 83 P. 832; 16 C.J. 231.

The prosecutions were begun when the informations were duly filed by an authorized official before the expiration of two years from the commission of the offenses, so the prosecutions were not barred by the statute of limitations; and the mere failure of the clerk to issue capiases on the informations until after two years from the commission of the offenses does...