White v. White
| Decision Date | 09 January 1933 |
| Parties | WHITE, Chief of Police v. WHITE. |
| Court | Florida Supreme Court |
On Rehearing June 14, 1933.
En Banc.
Error to Circuit Court, Volusia County; M. G. Rowe, Judge.
Petition by Hattie White for a writ of habeas corpus against J. B White, as Chief of Police of the City of New Smyrna. To review a judgment discharging the petitioner from custody the respondent brings error.
Affirmed.
On Rehearing.
COUNSEL Francis P. Whitehair and Hull, Landis & Whitehair, all of De Land, for plaintiff in error.
Z Bass, of New Smyrna, and Scarlett & Futch, of De Land, for defendant in error.
In this cause Mr. Chief Justice BUFORD, Mr. Justice ELLIS, and Mr. Justice BROWN are of opinion that the judgment in this cause should be affirmed, while Mr. Justice WHITFIELD, Mr. Justice TERRELL, and Mr. Justice DAVIS are of opinion that the said judgment should be reversed. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the court are permanently and equally divided in opinion as to whether the judgment should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the court, the judgment should be affirmed. Therefore it is considered, ordered, and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the judgment of the circuit court in this cause be, and the same is hereby, affirmed.
Affirmed.
On Rehearing.
On the 19th day of February, 1932, the Honorable M. G. Rowe, judge of the Seventh circuit for Volusia county, discharged Hattie White from the custody of J. B. White, chief of police of the city of New Smyrna, upon a petition for a writ of habeas corpus.
The writ was issued on February 18th, and on the day following the chief of police made a return. Aside from the gratuitous information contained in the return that Hattie White had been convicted in the municipal court of the offense of 'having in her possession in said City spiritous, vinous or malt liquors, in violation of Section 328 of the Code of the City of New Smyrna,' and the further information that she was adjudged to be guilty of the alleged offense and sentenced to pay a fine of $50, and in 'default of the payment of such fine to be confined in the City Jail of the City of New Smyrna for a period of sixth (60) days,' and that she failed to pay the fine, the return showed that the 'Municipal Judge thereupon issued a commitment commanding respondent to convey said petitioner to the City Jail of said City of New Smyrna and there safely keep her until the judgment of said court had been satisfied.'
The commitment referred to in the return, a copy of which was attached, does not show that the chief of police, the respondent, was required to keep the petitioner in custody, but that he should deliver her to the 'keeper' of the city jail, who was required to 'receive' her and 'safely keep him subject to the direction of the City Commission' (italics mine) until the judgment of the court be satisfied.
Whether the 'keeper' of the city jail and the respondent were the same person does not appear from the record. In any event, the commitment does not conform to the judgment as to the duration of imprisonment. The judgment was that the accused 'pay a fine of Fifty Dollars ($50.00) and costs, or in default of the payment of such fine' that she 'be confined in the City Jail' for a 'period of sixty (60) days.' The commitment required the keeper of the jail to keep her 'subject to the direction of the City Commission' of the City 'until the judgment of this Court is satisfied or either he be thence discharged by due course of law.' (Italics mine.)
Neither the judgment nor commitment recites that the accused defaulted in the payment of the fine. The court was expected to obtain the necessary information on that very material point from the return made by the chief of police, who states 'that the said petitioner failed to pay such fine' and 'said Municipal Judge thereupon issued a commitment,' etc. (Italics mine.) Whether the fine was paid is a matter which has no place in the return. The record does not disclose that the chief of police had any duty at all to perform in the matter of its collection, and its incorporation in his return was improper, as his sole authority for the detention of the accused was the commitment from the municipal court, a copy of which was attached to the return. It does not appear from the commitment that it was issued because the accused had failed to pay the fine, as the language of the return made by the chief of police would indicate. The return states that she 'failed to pay' the fine, and the judge 'thereupon' issued the commitment.
It appears that the judgment was entered on the 16th of February, and that the commitment was issued the same day. The order was that the accused be delivered to the 'keeper' of the jail, who was directed to 'safely keep him' until the 'judgment of this court is satisfied.' So there is nothing in return of the chief of police worthy of any consideration in this proceeding, save that portion which shows his authority for the detention of the accused as consisting of the writ of commitment. See Martin v. Karel (Fla.) 143 So. 317.
The petition alleges that three days before Mrs. White's conviction, at 10 o'clock p. m., her house was entered and searched, and she was arrested without any kind of warrant whatsoever, and was 'there and then * * * incarcerated' in the 'common jail of the City of New Smyrna,' and 'is still restrained of her liberty under said illegal and unlawful search.' Nothing in the record contradicts that allegation.
The petitioner answered the return, and alleged that the 'pretended conviction herein is void because the Court did not have jurisdiction of the person of this petitioner in that her arrest was void ab initio in that her dwelling house was broken open in the night-time, to-wit, about 10:00 o'clock P. M. without any warrant having been issued and she was forcibly arrested for an alleged misdemeanor and thrown into jail'; that her pretended, conviction was void, 'in that it is based upon illegal evidence taken from her dwelling house without any search warrant.' That answer was sworn to by the petitioner before the circuit judge. The answer was dated and filed on the 19th of February, and on the same day the circuit judge ordered her discharged from custody.
On the 23d day of February, 1932, the respondent moved the court for an order directing the clerk of the circuit court to issue a writ of error. The motion was granted, and the clerk was directed to issue a writ of error. Not until the 12th of August, 1932, nearly six months thereafter, was a praecipe filed for the writ which was issued on the same day. The record was made up under special rules numbered 1, 2, 3, circuit courts law actions. The petitioner filed a request with the clerk that a 'transcript (of) the testimony taken before the Honorable M. G. Rowe, Judge of the Seventh Judicial Circuit of Florida, upon the hearing of the petition for writ of Habeas Corpus on the 17th day of February, A. D. 1932' be copied and made a part of the transcript. That request was not complied with. There is a statement in the record, over no one's signature, that 'no copy of testimony taken before' the judge 'upon the hearing of the petition for writ of Habeas Corpus, on the 17th day of February, A. D. 1932 has been filed.'
The contention is made by plaintiff in error first that, since the record discloses a warrant was issued against the petitioner, that issue, in so far as it was involved in the case, should have been found against the petitioner because it was not so defective in its allegations as to wholly fail to allege an offense against the city ordinance; secondly, that, as the petitioner grounded her right to a discharge upon the allegation that her 'conviction was based upon illegal evidence,' and as the writ of habeas corpus may not be used to test the sufficiency of evidence upon which a charge may have been based, the trial court should have decided that issue against the petitioner. The above two errors, it is urged, are affirmatively made to appear by the record.
Now in this case the burden of affirmatively making the alleged error of the circuit court to appear must be carried by...
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