State, ex rel. George Couper Gibbs, As Attorney General, v. T. Frank Hobson, As Circuit Judge, and Karlyle O'Berry, 135 Fla. 335

Per Curiam. On the second day of December, 1938, a rule nisi in prohibition issued out of this Court addressed to Honorable T. Frank Hobson, Judge of the Sixth Judicial Circuit of Florida, directing him to show cause why he should not be prohibited from further proceeding to take testimony in a certain cause pending before him by reason of a writ of habeas corpus issued by a Justice of this Court and returnable before the said Circuit Judge.

The theory forming the basis of the rule nisi was that the Circuit Judge, although he was empowered to entertain the writ of habeas corpus, had no authority to examine witnesses to determine whether probable cause existed to charge Karlyle O’Berry with the crime of manslaughter when an information setting out the violation of law by the said Karlyle O’Berry had already been filed. A return to the rule nisi in prohibition was made by Honorable T. Frank Hobson and a demurrer to the petition was filed by the said Karlyle O’Berry.

The Court has considered the rule in the cause and heard the remarks of the Assistant Attorney General, the Assistant State Attorney for the Twelfth Judicial Circuit and Counsel for Karlyle O’Berry.

The Court is of the opinion that the main question involved, viz.: whether, in response to the writ of habeas corpus issued by a Justice of the Supreme Court and returnable before the Circuit Judge, he may hold an inquiry to determine if there is probable cause for the charge by information that Karlyle O’Berry has committed the said offense, cannot be properly determined in a proceeding of this character but can only be decided on writ of error. See 5444 C. G. L. 1927. It is, therefore, the order of the Court that the rule nisi be, and it is hereby quashed. Terrell, C.

J. and Whitfield, Brown, Chapman, and Thomas, J. J., concur. Buford, J., dissents.