Ex Parte W. R. Brandau-Habeas Corpus, 26 Fla. 142

Mitchell, J.: The petition for a writ of habeas corpus was filed in this1 court March 21, 1890. The writ was issued on the same day, returnable March 24, 1890. The petition alleges, among other things, that the petitioner, W. R. Brandau, is “ confined unjustly (as he apprehends),” in the county jail of Walton county, Florida. That he is held under a commitment issued by S. P. Darby, county judge of said county, upon a charge of forgery; the petitioner denies that he is guilty, of any crime as alleged. It prays a writ of habeas corpus and an investigation by this Court of the charge. J. A.

McLeod, sheriff of said county, made return that he held the petitioner und'er a commitment issued by S. P. Darby, county judge of Walton county. By consent of counsel, James A. McLean, Esq., was appointed to take the testimony in the case; and the testimony being taken and submitted to the court, is substantially as follows : J. B. Cawthon, a witness for the State, says that he, as deputy sheriff, arrested the petitioner, and that he knew the petitioner by the name of Sobey; that he told petitioner that he was after him ; that petitioner asked him what was the matter, and that witness told him that Mr.

Bovis was dissatisfied about the check he had cashed for the petitioner, and that witness wanted him to go back to DeFuniak with him; that they started back, and petitioner said that he was sorry that he got into it, but as he was into it he would tell witness the whole thing; that he asked witness if he would not take the money and let him go, and said that he was afraid to come back here for fear that Bovis had wired the house ; that he was wanted at another place; that petitioner said he knew he had done wrong; that he knew the company would not honor his draft; that he had drawn other drafts on the company that had not been honored, and that he wanted the money of Bovis to go home on and see why his drafts were not honored.

The instrument the petitioner is charged with forging is as follows: $25.0o January 28, 1890. At sight pay to the order of Henry Bovis twenty-five dollars, value received, and charge the same to account of W. R. Brandau. To ¥ " ' This evidence utterly fails to sustain the charge of forgery against the petitioner. There is nothing on the face of the instrument he is charged with forging''to induce the belief that the signature thereto is not genuine. This the Attorney General, in his argument, admits.

Nor is there any other evidence in the case to show that the petitioner did not sign his true name to the draft, or that the draft had been altered in any respect for the purpose of fraud or deceit, and in the absence of such showing the charge against the petitioner is not made out. 2 Bishop’s Criminal Law,

section 523; State vs. Thompson, 19 Iowa, 299; State vs. Kimball, 50 Maine, 409; Barnum vs. State, 15 Ohio, 717 ; State vs. Johnson, 26 Iowa, 407. Our opinion being that the charge of forgery is not in the least sustained by the evidence, the prisoner should be discharged from custody under that charge, but this release will not preclude his being prosecuted before a magistrate if the authorities shall see fit to institute the same, and held in default of bail to answer for any offence of which there may be evidence showing probable cause for his detention, whether such proceedings shall be instituted either before or subsequent to his discharge from custody on the charge of forgery.