State Ex Rel. Wentworth v. ColemanState Ex Rel. Wentworth v. Coleman
- Reporters:
- , , ,
- Before:
- Davis
Thе plaintiff in error, J. H. Wentworth, sued out a writ of habeas corpus in the Circuit Court of Dade County, in which proceeding hе advanced the contention that he should be discharged from custody in the instant case because it was shown that the sole cause for his detention by the respondent Sheriff was an arrest under a capias that had bеen issued on a criminal information filed charging him with embezzlement. Such information, so it was alleged, had becomе void and of no legal effect because of an alleged unlawful and unauthorized alteration made thеrein by the County Solicitor, after the same had been filed and capias thereon issued, no notice or hеaring, nor order of court permitting same, having been applied for or had as a predicate for suсh alteration.
The Circuit Court remanded the prisoner, his motion for discharge to the contrary notwithstanding, so the сase is here on writ of error to the judgment of remand.
It is shown by the record that on March 10, 1932, the County Solicitor of Dаde County filed in the Criminal Court of Record of that county an information purporting to charge the plaintiff in error with the offense of embezzlement under Section 7247 C. G. L., 5146 R. G. S. In this information as filed, the Solicitor by mistake described an *15 element of the offense charged as having been done by one G. W. Wentworth, whereas J. H. Wentworth was intended to be named. The accused was arrested, gave bond and was thereupon furnished, as required by the statute (8377 C. G. L., 6072 R. G. S.) with a certified copy of the information filed against him. It was after all this had transpired that the County Solicitor undertook, by way, of alteration of the information, to correct his error in the charging part of same by changing the name G. W. Wentworth, wherever it appeared therein, to read J. H. Wentworth *
Under our statutes (Section 8366 C. G., 6061 R. G. S.) the rules of pleading and practice applicable to indictments by Grand Juries obtain as to information filed in the Criminal Courts of Rеcord by County Solicitors. For this rea
*16
son it has been held by this Court that the liberal rule permitting amendments to be made to informations already on file in the criminal courts (except under circumstances amounting to a refiling of thе same) does not obtain in Florida. See: Suarez v. State,
Respectable authority is to the effect that where an indictment has been returned and filed under oath of the Grand Jury as an accusatory body, that the subsequent unauthorized striking out from the indictment of certain words that appeared therein at the time of its filing by the Grand Jury, arrests thе power of the Court to thereafter proceed to try the prisoner on such indictment, the act of unauthorized alteration of the indictment being held the equivalent of a legal dismissal or
nolle prosequi
operating as a vitiatiоn of same by the prosecuting officer whose alteration of the Grand Jury’s act was thus attempted.
Ex parte
Bain,
So the rule is, in cases of this kind, that while the unauthorized alteration of an indictment or information by the аct of the prosecuting officer in undertaking to amend it after it is filed, and without lawful authority so to do, may be attacked in the court in which the indictment is pending, either by motion to quash supported by proof of the defect, оr by a plea in abatement challenging the verity of the indictment or information as the one originally returned оr filed, it may also be attacked by habeas corpus proceedings, because the unauthorized act of alteration operates to arrest the power of the trial court to proceed to trial on *17 such indictment or information, and consequently entitles the defendant to seek his release from custody under it when such indictment or information is' the sole and only alleged cause for his detention in custody. See Ex Parte Bain, supra.
In this case the proceedings before the Circuit Court fully established the alleged unlawful alteration complained оf, and, indeed, the same has in no wise been refuted either before this Court or the Circuit Court, by any appropriate denial of defendant’s claim that such alteration was made.
It follows that the judgment of the Circuit Court should have been that the prisoner be discharged from custody under the capias on which he was held, and such will be the judgment of this Court on this writ of error.
Judgment for plaintiff in error in appellate court.
Notes
The information as originally filed in the Criminal Court, and priоr to its alteration, read as follows: “Fred Pine, County Solicitor, etc., under oath, information makes that J. H. Wentworth оf the County of Dade and State of Florida, on the 1st day of March, 1931, * * * in the County and State aforesaid, did unlawfully embezzlе and fraudulently convert to his own use certain money of one Bob Simpson, of whom he, the said G. W. Wentworth, was then and there the agent, clerk and servant, to-wit: ten thousand dollars, lawful money of the United States of America, of the prоperty: of the said Bob Simpson, a more particular description of which is to the County Solicitor unknown, which сame into the possession of the said G. W. Wentworth and was then and there under his care by reason of his said employmеnt as such agent, clerk and servant, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Florida. (Signed) Fred Pine, County Solicitor, Dade County, Florida.” .The Oаth to the information was made before A. D. Killian, Deputy Clerk of the Criminal Court of Record of Dade County, who attested the same under date of March 10, 1932. The alteration in the name “G. W. Wentworth” was made by interlining above the “G. W.” the initials “J. H.” in the two places which have been underscored in the information as above quoted.