SULLIVAN, Sheriff,
v.
STATE ex rel. McCRORY.
Supreme Court of Florida, Division A.
*795 Richard W. Ervin, Atty. Gen., Murray Sams, Jr., Asst. Atty. Gen., Glenn C. Mincer, State Atty., Robert R. Taylor, County Solicitor, Miami, and V.B. Rutherford, Asst. County Solicitor, Miami Beach, for appellant.
Hunt, Salley & Roman, Miami, for appellee.
ROBERTS, J.
The appellee was arrested on March 21, 1950, on a capias issued by the Criminal Court of Record of Dade County, Florida, to answer to an Information filed in said court by the County Solicitor and, on March 23, 1950, filed his Petition for Writ of Habeas Corpus in the Circuit Court of said county to obtain his release from custody. At the time of filing his petition, the appellee, who had been released from custody on the recognizance of his attorney, voluntarily submitted his person to the custody of the sheriff, temporarily and for the purpose of procuring the writ. The trial judge issued the writ forthwith, returnable to the same day, refusing the request of the state for time in which to prepare and file a return, and proceeded immediately to hear the testimony of witnesses (being the state's witnesses whose names were endorsed on the back of the Information). The taking of testimony was continued to and completed on the following day, March 24th, on which date the sheriff, appellant here, filed his return to the writ. On April 4th, the trial judge entered an order discharging the appellee from custody, on the sole ground that there was a total lack of evidence to sustain the charge. Appeal on behalf of the state has been perfected from such final judgment.
Prior to the taking of testimony, counsel for the appellant presented orally a motion to quash the petition, which may be treated as a motion to dismiss, see State ex rel. Rasco v. Rasco,
The petition filed by appellee alleged the fact of his arrest "upon a purported capias or warrant of the Criminal Court of Record of Dade County predicated upon *796 an Information filed by the County Solicitor for said County purporting to charge petitioner with the offense of counseling and procuring another to burn a boat of a third party with felonious and willful intent to defraud an insurer of said boat." As grounds for his claim that he was unlawfully restrained of his liberty, appellee alleged that "there is no evidence whatever to sustain the aforesaid charge in that (a) petitioner was not within the City of Miami, Dade County, or the State of Florida at the time of the alleged offense, and (b) petitioner did not counsel or procure, to any extent or in any respect, the burning of said boat, either for the purpose of defrauding an insurer or otherwise." There were three other grounds alleged, all of which were without merit, and which will not be discussed in this opinion.
The statute, Section 79.01, Florida Statutes, same F.S.A., requires that, before the writ shall issue, the petitioner shall show "probable cause to believe that he is detained in custody without lawful authority". While the allegations of a petition will not be scrutinized too closely as to the form of expression, it is well settled that the writ should not be allowed where the petition does not make a prima facie showing that the applicant is entitled to be discharged from custody. See ex parte Aulday,
The allegation designated (a), that appellee was "not within the city" at the time of the alleged offense is no defense to the crime charged; and, even if it were, such defensive matter is not properly presented in a habeas corpus proceeding. See Lehman v. Sawyer,
And even if we consider that appellee alleged, without qualification, that "there is no evidence whatever to sustain the aforesaid charge," his petition must still fail. The petition alleged that appellee was held under an Information filed in the Criminal Court of Record, which Information bears the sworn statement of the County Solicitor that the "allegations as set forth in the foregoing Information are based upon facts that have been sworn to as true, and which, if true, would constitute the offense therein charged." The appellee must be held to know that there was some kind of evidence against him, so that the allegation of "no evidence whatever" is, without more, a nullity.
The other ground of appellant's motion to dismiss, above referred to, was also well taken. It was admitted at the hearing that the appellee had been released from custody on the recognizance of his attorney, and that he had voluntarily submitted himself to the custody of the sheriff only temporarily, and solely for the purpose of securing the writ. Under such circumstances, the writ should have been denied. See 25 Am.Jur., Habeas Corpus, Sec. 24, p. 158; In re Whisenhunt,
The trial judge should have dismissed the petition, upon the motion of appellant, and his refusal to do so was error.
The appellant also requests this court to decide whether the trial judge erred in allowing the petitioner to adduce testimony concerning the evidence upon which the Information was based; and, because of the importance of the procedural question, we will set forth our views.
*797 As heretofore noted, the trial judge granted the writ forthwith, refused to grant a continuance to the state so that a return could be prepared and filed prior to hearing, and proceeded immediately to take testimony, evidently to prove the allegations of the petition. This was error. In habeas corpus proceedings, the return is directed not to the petition, but to the writ; and the issues are framed upon the return and the denial or other controversion of the material matters set forth in the return, without reference to the petition for the writ. 25 Am.Jur., Habeas Corpus, Sec. 137, p. 241; Jensen v. Sevy,
It was therefore error to take testimony prior to the filing of the return to the writ, and prior to the proper joinder of issue thereon, even if the petition had been a proper basis for the issuance of the writ.
At the risk of lengthening this opinion unduly, we wish to make clear that the use of the writ of habeas corpus to test the sufficiency of the evidence upon which a charge may have been based is not sanctioned by this court. See State v. Vasquez,
Where, however, an information, valid on its face, is filed in a competent court of record, which has jurisdiction over the person of the defendant, as well as the offense charged, the jurisdiction to try the case is vested in such court; and the due and proper administration of public justice requires that it be allowed to proceed to a final determination of the cause without interference from any other tribunal.
While we do not wish to state that the writ of habeas corpus can never, under any possible state of facts, be used to examine the evidence upon which a prosecuting officer acted in presenting an Information, we think that great caution should be used in granting the writ solely for that purpose not only to insure the orderly course of the administration of the criminal law, but also to prevent the use of the writ as a "fishing expedition" to discover the state's evidence.
For the reasons stated, the judgment sustaining the writ and discharging the appellee should be reversed, the writ dismissed, and the appellee remanded, to be dealt with according to law.
It is so ordered.
ADAMS, C.J., and TERRELL and THOMAS, JJ., concur.