26 Fla. 97 | Fla. | 1890
This is a writ of error to a judgment rendered by the Circuit Judge of the Sixth Circuit in a habeas corpus proceeding.
Sims, while thus in the custody of the sheriff, presented to the Circuit Judge on the next day, a petition for a writ of habeas corpus, alleging that he' was so detained without lawful authority, and deprived of his liberty without probable cause, and to his right to a preliminary examination, and that the Criminal Court of Record was not in session when the above mentioned information, upon which the warrant was issued, was filed, nor was it in session at the time of presenting the petition, nor could the term of such Criminal Court of Record, as of which the information is entitled and purports upon its face to be presented, viz : the April Term, A D. 1890, be held for more than a month. That he was innocent ®f the charge brought against him;
The writ having issued, the sheriff made return to it that he held the petitioner under the warrant described above as issued by the Clerk of the Criminal Court of'Record of Lake county ; and on the sixth day of March the cause came on to be heard upon the above record and an admission by the County Solicitor, upon whom notice of the hearing had been served, that the County Criminal Court of Record of Lake county was not then in session, nor when the information was filed; and the Circuit Judge refused to permit any evidence of the facts upon which the information was based to be brought before him, and remanded the petitioner “ to the custody of the sheriff, as it appears a Criminal Court of Record of Lake county has jurisdiction.”
To this judgment a writ of error was granted on the next day by a Justice of this court, returnable to the court in term at its present sitting.
It is insisted on behalf of the plaintiff in error that the
The Constitution provides for the establishment by the Legislature of a Criminal Court of Record in any county upon application of a majority of the registered voters, and that there shall be one judge for each of said courts, and that the said “courts ” shall have jurisdiction of all criminal cases not capital which shall arise in said counties, respectively, and that there shall be six terms of these courts in each year, and there shall be for each 'of the courts a prosecuting attorney, and that “ all offenses triable in said court shall be prosecuted upon information under oath, to be filed by the prosecuting attorney, but the grand jury of the Circuit Court for the county in which said Criminal Court is held may indict for offenses triable in the Criminal Court, and upon the finding of such indictment the Circuit Judge shall commit or bail the accused for trial in the Criminal Court, which trial shall be upon information. Sections 24-28, Art. V., Const. 1885.
The Criminal Court of Record of Lake county was established by a statute approved May nth, 1889, Pamphlet Laws of 1889, p. 169, which enacts that the court shall have jurisdiction to tr.y and determine all violations of the criminal laws of the State arising in that county and not punishable by capital punishment; that there shall be held six terms of the court in each year, the same to begin on the second Tuesdays in February, April, and the other alternate months; that the said court shall exercise the same power in issuing warrants, attachments and summonses as is had and exercised by the Circuit Courts of the
The jurisdiction given to Criminal Courts of Record by the above provisions of the Constitution, is a trial jurisdiction as distinguished from one for mere examination with reference to the discharge, bail or commitment without bail of the person accused; and the purpose of that instrument in providing that all offences triable in that court
There is nothing in the Constitution as to the exercise in vacation by the County Solicitor, the clerk or sheriff of the powers complained of here, nor is there anything as to the exercise of any functions by the judge out of term. Looking to the statute whose provisions, in so far as they can be said to relate to the question before us, are substantially set out above, we find no authority given to the County Solicitor to file an information in vacation as the basis for the issue of-a warrant for the arrest of the accused, nor any conferred upon the clerk for the issue of such a warrant under such circumstances. The grant to the “court” of the same power in issuing warrants, attachments and summonses, as is now had and exercised by the
It is true the County Solicitor is allowed the process of
That it was not the purpose of this provision to authorize the filing of an information in vacation to be followed by the issue of a warrant of arrest becomes more apparent when, considered in connection-with that mentioned above to the effect that the court shall exercise the same'power as the Circuit Courts in issuing warrants, attachments and summonses, and -with those clauses which declare that the same rules of procedure and practice which now obtain in the trial of criminal cases in the Circuit Court shall obtain in this court (section 5), and the same rules of * * practice which now obtain in trials by indictment shall obtain in trials by information. If it had been the intention of the legislature to give the power which has been exercised here it would not have merely given the Solicitor the specific powers as to summoning and examination of witnesses and vested him with the same powers as to his duties and powers as to the Criminal Court of Record and offences
The result, then, is that the laws of this State do not authorize the County Solicitor of Lake county to file in vacation an information which shall have the effect to set the process of that court in motion for the arrest of the person charged in it with a violation of a criminal law, of the trial of which that court has jurisdiction. There being no such power as has been exercised here given by the laws applicable to the Criminal Court, the duty to the public of having the petitioner arrested and his alleged offending inquired into for the purpose of securing his personal attendance for trial at the next term of the Criminal Court of Record of Lake county, must be performed through the same judicial instrumentality which would be available if there was no criminal court in the county.
The petitioner was remanded to the custody of the sheriff by the Circuit Judge because he thought the Criminal Court of Record had jurisdiction in the case. The information, filed as it was, did not give that court jurisdiction. It was a proceeding in the clerk’s office wholly unauthorized by law, and it neither gave that court jurisdiction of the case, nor its judge authority to make the order or endorsement as to bail. Such an information filed in the office of the clerk of the Circuit Court by the State Attorney would not have given the Circuit Judge the power or imposed upon him the duty or obligation to fix the amount of bail, but his duty would be to treat the proceeding as coram non judice.
The law has riot given to an ex-parte examination made
The petitioner is held without due process of law, and the judgment of the Circuit Judge will be reversed and the case remanded, with direction to discharge him from custody under those proceedings.