
    G. A. McLeod, Plaintiff in Error, v. Henry R. Chase, as Sheriff Dade County, Defendant in Error.
    
    Division A.
    Opinion Filed April 17, 1928.
    
      Loftin, Stokes & Galkins, Plaintiff in Error;
    
      Fred H. Davis, Attorney General, and Boy Campbell, Assistant, for the State.
    
      Claude Payton, as Amicus Curiae.
    
   Ellis, C. J.

McLeod, the plaintiff in error, was arrested upon a warrant charging him with the crime of embezzlement. He was committed to await the action of the Criminal Court of Record and was required to enter into an appearance bond in the sum of fifteen thousand dollars. He obtained a writ of habeas corpus from the Circuit Court of Dade County and moved for his discharge on the Sheriff’s return. The writ was issued on November 16, 1927, and the Sheriff’s return was made the same day. He produced the body of McLeod and the original commitment of him as issued by the magistrate. The writ of commitment is regular in all respects and recited that from an examination held by him it appeared that there was just reason to believe that McLeod was guilty of the offense charged.

On the 26th of November McLeod’s attorneys caused to be filed, what is termed, McLeod’s reply to the Sheriff’s return, denying that he was guilty of the offense charged and denying that there was any evidence before the committing magistrate to show that a crime had been committed or that there was good cause for believing that he was guilty.

On December 8th the Honorable Circuit Judge reviewing the evidence held that McLeod should have been discharged by the committing magistrate as the evidence was insufficient upon which to hold the petitioner, McLeod, upon the charge preferred against him. The learned judge however, declined to order McLeod’s discharge because he said the Supreme Court in the case of White v. Penton, 92 Fla. 837, 110 South. Rep. 533, held that the use of the writ of habeas corpus to test the sufficiency of the evidence upon which a charge may have been based was not sanetioned by the Court. The petitioner was remanded to the custody of the sheriff but was ordered to be released upon his own recognizance in the sum of fifteen thousand dollars.

On the 10th day of December the sheriff caused to be filed in the clerk’s office another return in which it was stated that the petitioner had made the bond for fifteen thousand dollars before Honorable H. F. Atkinson, Judge of the Circuit Court on the 16th day of November. Judge Atkinson’s order was that while he would not discharge the relator he would be relieved from the necessity of finding sureties upon his bail.

So it appears from these proceedings that upon the evidence adduced the Honorable Circuit Judge deemed the petitioner to be innocent of the crimes charged, that the facts in evidence constituted no offense, and that he should have been discharged by the committing magistrate. We agree with the learned judge in that conclusion.

The difference between McLeod and the prosecutor Jos. T. Kingsley grew out of a contract for the sale of lands located in Liberty and Franklin Counties in which a sum of money as a “binder” had been placed in a bank in Miami for McLeod to be paid over to him, or the corporation of which he was president, at such time as he should produce a warranty deed for the lands conveying a marketable title to eighty per cent of them.

It seems that the money was transmitted by the bank to McLeod’s corporation through a bank in Tampa and the sum was disbursed for the use and benefit of McLeod’s company. Afterwards it was discovered that title could not be perfected to a requisite amount of acreage and the negotiations failed. The depositor of the money demanded return of it by McLeod with which request he failed to comply.

It also appears that although McLeod is technically not discharged he is in fact not restrained of his liberty and is under his own recognizance. In this state of the case it appears to us that the question is purely a moot one. The relator is not deprived of his liberty and the evidence being reviewed by a court of competent jurisdiction is found to constitute no offense of the kind charged.

The writ of habeas corpus was designed as a speedy method affording a judicial inquiry into the cause of an alleged unlawful actual deprivation of personal liberty. See Porter v. Porter, 60 Fla. 407, 53 South. Rep. 546; Ann. Cas. 1912 C 867 n.

An inquiry in such proceedings goes to the legality of the alleged detention of the prisoner. Crooms v. Schad, 51 Fla. 168, 40 South. Rep. 497.

Since a conviction under a void statute is void and a person held under such a judgment would be discharged, see Ex parte Knight, 52 Fla. 144, 41 South. Rep. 786; 120 Am. St. Rep. 191; Harper v. Galloway, 58 Fla. 255, 51 South. Rep. 226; 26 L. R. A. (N. S.) 794, n, 19 Ann. Cas. 235, a person held in unlawful confinement under a state of facts which constitutes no offense under the law will be discharged on writ of habeas corpus. The case of White v. Penton, supra, does not apply.

The relator should be discharged because nothing may be accomplished by a dismissal of the writ of error.

Whitfield, Terrell, Brown and Buford, J. J. concur.

Whitfield, J.

(concurring) :

Within their authority, officers may enforce the law that is applicable to the facts of the case; and to act without supporting appropriate facts would be to enforce the individual will, not the law.

The writ of habeas corpus has been used in this State to release a person held under a commitment issued on a preliminary hearing before a county judge acting as a committing magistrate, where the evidence wholly failed to sustain the charge on which the commitment was made. See Ex parte Brandau, 26 Fla. 142, 7 South. Rep. 528. See also Ex parte Eagan, 18 Fla. 194; Ex parte Harfourd, 16 Fla. 283; 29 C. J. 63.

The writ of habeas corpus is more far reaching in such classes of cases for the reasons that committing magistrates are courts of inferior and limited jurisdiction and that no appeal or writ of error lies from their commitment. See Bronk v. State, 43 Fla. 461, text 471, 31 South. Rep. 248. In State v. Vaszuez, 49 Fla. 126, 38 South. Rep. 820, the petitioner was held upon an information filed in the Criminal Court of Record. In White v. Penton, Sheriff, 92 Fla. 837, 110 South. Rep. 533, the sufficiency of the charge as made and the validity of the statute were presented for determination. See Ex parte Prince, 27 Fla. 196, 9 South. Rep. 659; In re Robinson, 73 Fla. 1068, 75 South. Rep. 604; Spooner v. Curtis, 85 Fla. 408, 96 South. Rep. 836; Ex parte Knight 52 Fla. 144, 41 South. 786; Harper v. Galloway, 58 Fla. 255, 51 So. 266, 26 L. R. A. (N. S.) 749 N, 19 Ann. Cas. 235; Lewis v. Nelson, 62 Fla. 71, 56 So. 436.

The statute provides that on habeas corpus the court shall either discharge, admit to bail or remand to custody "as the law and the evidence shall require.” Sec. 3577, Rev. Gen. Stats. 1920; Ex parte Harfourd, supra.

The Constitution of this State provides for the election of Justices of the Peace and defines their jurisdiction as trial courts, and confers upon each Justice of the Peace "power to issue process for the arrest of all persons charged with felonies and misdemeanors not within his jurisdiction to try, and make the same returnable before himself or the county judge for examination, discharge, commitment or bail of the accused.” Sections 21, 22 Art. V.

The authority of a Justice of the Peace as a committing-magistrate is judicial in its nature, but it is special and limited; and though the power is conferred by the Constitution the exercise of it is regulated by statute. Unless the authority is exercised as the statute prescribes it is ineffectual.

The statute requires the committing magistrate "to ascertain whether there is good ground to hold the accused to bail,” Sections 6024-6031 Rev. Gen. Stats.; and provides that the committing magistrate shall require bail in bailable cases if after examination he “shall be satisfied that there is good ground to hold the accused to bail.” Sec 6036.

The statutory "examination” contemplates a consideration of all pertinent evidence adduced. If there is substantial legal evidence direct or circumstantial of all the elements that are essential to the offense charged and by such evidence the magistrate “shall be satisfied that there is good ground to hold a person accused to bail,” the magistrate may require bail or commit to jail in default thereof, and his action is within his jurisdiction, whether his decision is correct or erroneous .

On habeas corpus taken by one committed by a committing magistrate, the court may examine into the sufficiency of the complaint to charge a criminal offense, and may consider the evidence that was adduced before the magistrate to determine whether there is substantial legal evidence of all the ultimate facts that are essential to be proven at the trial to convict the accused of the offense charged. The court on habeas corpus will not weigh conflicting testimony or measure the credibility of competent witnesses. See State ex rel. v. Huegin, 110 Wis. 189, 85 N. W. 1046; 62 L. R. A. 700; 29 C. J. 64; State v. Ross, - N. D. -, 170 N. W. 121; 35 Nev. 80.

Nor will the court on habeas corpus determine the probative force of conflicting or controverted testimony on which the charge is based, or the sufficiency of a substantial defense. White v. Penton, Sheriff, supra.

The evidence will be examined only to determine whether there is any substantial evidence of all the essential elements of the charge on which the accused was committed. 100 A. S. R. 31; 12 R. C. L. 1242.

Strum and Brown, J. J., concur.

Brown, J.

(concurring) :

The weight of authority appears to support the rule that on habeas corpus the court may inquire whether there was any legal evidence before the committing magistrate to sustain the charge for which he was committed; that is, whether there is any evidence upon which the magistrate might reasonably find the existence of “good ground” (which means “probable cause”) for holding the accused for trial. This is in a sense jurisdictional, as to commitments by Justices of the Peace. If there is no such evidence, as was the case here, the prisoner should be discharged. If there is such evidence, although controverted, the court will not endeavor to determine whether the magistrate exercised his jurisdiction erroneously in deciding as to the weight and credibility of the conflicting testimony but will remand the prisoner. As pointed out in the case of White v. Penton, in which the writer concurred and which I think is good law, it is not the function of the court on habeas corpus to determine the guilt or innocence of the accused on the merits.  