Terrell v. Wiggins

• Decision Date: 14 May 1908
• Citation: 55 Fla. 596,46 So. 727
• Parties: TERRELL v. WIGGINS, Sheriff, et al.
• Court: Florida Supreme Court

46 So. 727

55 Fla. 596

TERRELL v. WIGGINS, Sheriff, et al.

Florida Supreme Court, Division B.

May, 14, 1908

Error to Circuit Court, Polk County; Joseph B. Wall, Judge.

Petition of Ben Terrell for writ of habeas corpus against J. R Wiggins, sheriff, and others. From an order denying the writ petitioner brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where on habeas corpus it appears that the petitioner was convicted of a misdemeanor and sentenced to imprisonment in the county jail at hard labor for 12 months, and that more than 12 months had elapsed since the date of the sentence under which the petitioner was still held in custody, but it also appears that the petitioner has actually suffered only about one-sixth of the term of imprisonment, and that during the balance of the term he was at liberty with his own consent if not his own request, it is held that said petitioner is not entitled to be discharged from custody.

The principles of law enounced in State v. Horne, 52 Fla. 125, 42 So. 388, 7 L. R. A. (N. S.) 719, approved and applied.

COUNSEL

J. W. Brady, for plaintiff in error.

'The petition of W. C. Sprott, a citizen of said county, humbly complaining, shows unto your honor that Ben Terrell, a person of color, also a citizen of said county in whom petitioner has an interest, is illegally deprived of his liberty in said county by J. R. Wiggins, sheriff thereof, and Wiggins & Riggins, a firm, whose names are otherwise unknown to your petitioner, lessees of the county convicts of Polk county.

'Petitioner shows: That the said Ben Terrell was found guilty on a plea of guilty of the offense of carrying on the business of a dealer in liquors in Polk county, which county had voted against the sale of liquors in Polk county, on the 5th day of December, 1906, in the county court of Polk county on an information filed therein on the 6th day of October, 1906, a certified copy of which information is hereto attached, and made a part of this petition.

'That on said 5th day of December, 1906, in open court in said county court, the said Ben Terrell was sentenced by the Honorable W. S. Preton, judge of said court, as follows 'It is the sentence of the law that you, Ben Terrell, be confined in the jail of Polk county at hard labor for a term of twelve months'--a certified copy of which judgment and sentence of the court is hereto attached and made a part of this petition.

'The said Ben Terrell, being now deprived of his liberty, and acting herein by the petitioner, W. C. Sprott, shows that there was no appeal from said judgment, and that it went into operation on said 5th day of December, 1906, and that it has ever since been operative, and the said Ben Terrell has continuously since been in the custody of the law and subject to the commands of the sheriff of Polk county, and has complied with all conditions and commands placed upon him; that he has by reason of said sentence worked on the public roads of said county at various times as a county convict during said 12 months, at others allowed to be at large on conditions, as was, while serving time as a convict on the public roads, transferred to the custody of said Wiggins & Riggins, lessees, where he was held in custody at labor as a convict before and at the time of the expiration of his sentence on the 5th day of November, 1907, and where he is now still so held as a convict at labor, and deprived of his liberty notwithstanding said sentence expired on said last-named date, and he is now denied of his liberty by the said J. R. Wiggins, sheriff, and Wiggins & Riggins, lessees of convicts.

'The said Ben Terrell, through your petitioner, W. C. Sprott, alleges, by reason of these facts, that his present and further detention and imprisonment are illegal, and that he is entitled to his liberty, and he prays that the state's most gracious writ of habeas corpus be directed to the said J. R. Wiggins, sheriff, and Wiggins & Riggins, lessees, to produce the body of the said Ben Terrell before your honor on a day to be named therein, together with the cause of his present detention, that the matter of said present detention may be inquired into and justice done in the premises. And petitioner will ever pray,' etc.

A copy of the information and judgment are attached to the petition. The writ was issued, and the following return made by the sheriff:

'In the matter of the petition of W. C. Sprott, a citizen of Polk county, Fla. for a writ of habeas corpus in behalf of one Ben Terrell. Comes now J. R. Wiggins, sheriff of Polk county Fla., and in answer to the writ of habeas corpus issued by the Honorable Jos. B. Wall on the 1st day of January, A. D. 1908, and says that he does not and has not deprived the said Ben Terrell of his liberty illegally or without due process of law, but that the cause of his detention is as follows: That on the 5th day of December, A. D. 1906, the said Ben Terrell in open court of Polk county, Fla., entered a plea of guilty to selling intoxicating liquors, contrary to prohibition regulations, and that the court entered a sentence that the said Ben Terrell be confined in the county jail at hard labor for a period of 12 months, and it was further ordered that, upon the payment of $50 and costs, the above sentence would be suspended during such time as defendant abstained from selling spirituous, vinous, or malt liquors, from being or staying where any such liquors are sold, or from maintaining, keeping, or being interested in any place of business or institution where any such liquors are sold or kept, and that the said Ben Terrell, of his own...