85 Fla. 42 | Fla. | 1923
Lead Opinion
In a petition for writ of habeas corpus, Jesse Cohen alleges that he is wrongfully detained in custody of the sheriff of Manatee County, and prays to be discharged.
A petition for writ of habeas corpus, while a writ of right, will not issue where the facts alleged show that the petitioner is not entitled to the relief prayed.
The affidavit for continuance in other respects complied with the law.
In opposition to this motion the defendant filed three affidavits setting out that Hinton was residing with his family in the State of North Carolina. Two of the affidavits were signed by the father and mother of the State’s 'witness, who swear that he “left this county and State in August of 1922; that he took his family with him, and has since made his residence in Southern Pines, N. C., and that his absence from this State is meant to be permanent; ’ ’ that he stated to his father and mother that he did not intend to' return to this county, and that it is their opinion based upon his statements that'he will not be in the county at the March term of the Circuit Court, or any other, subse'quent'term. '
. The facts stated as to what Hinton .-would testify to, are ■insufficient to show- any violation of law, and the affidavits of the parents of the absent witness offset the effect, of the statement of the State Attorney that he “believes that it will be able to. procure the said witness to testify at the trial of this cause.”
The court granted the continuance, and at the request of the State Attorney, fixed the bond at $3,000.00. This in view of the offense charged and of the offer made by the State Attorney on the preceding afternoon, to let the prisoner go upon his own recognizance if he would consent to a continuance, seems very greatly excessive.
Whatever the petitioner’s right in the premises may be, he is. not. entitled to be .discharged from custody without
Concurrence Opinion
concurring.
I concur in tbe decision that upon the showing made petitioner is not entitled to be discharged from custody. But it seems to me that the statement in the opinion that “the facts stated as to what Hinton will testify to, are insufficient to show any violation of law, ’ ’ may be misleading.
If that evidence is the whole of the State’s ease it may not be sufficient to sustain a conviction. But it frequently occurs that different elements of the offense or different circumstances tending to indicate guilt are proved by different witnesses. It infrequently occurs that the crime alleged is proved by one witness. The fact intended to be proved by this,witness, namely, that he found upon the premises of the defendant four two-quart jars of moonshine, is material and tends to- show guilt of the accused.
I think the petitioner is entitled to his discharge upon the ground that he is being held because of a denial of his constitutional right to a speedy trial. The affidavit for continuance was insufficient in form and substance.