Opinion
November 17, 1950.
Appeal from the Circuit Court for Broward County, C.E. Chillingworth, J.
Joseph A. Varon, Hollywood, for appellant.
Richard W. Ervin, Atty. Gen., and Philip Goldman, Asst. Atty. Gen., for appellee.
July 27, 1950, the Circuit Court granted a motion of the Assistant State Attorney to quash the grand jury for the Spring Term of the Circuit Court of Broward County, the sole reason assigned for the motion being that only fourteen members of the grand jury were served with summons and that a grand jury cannot function with less than fifteen members. A new grand jury was drawn and organized. It returned an indictment against petitioner, appellant, for violating the gambling laws.
On petition for habeas corpus, petitioner contended that the indictment was invalid because the grand jury that returned it was illegally constituted in that the Circuit Court had no authority to discharge the grand jury that was functioning and order a new grand jury empaneled. After hearing on the writ and the return thereto the court remanded petitioner to the custody of the sheriff. This appeal was prosecuted from the order of remand.
The point for determination is whether or not one restrained of his liberty by an indictment, valid on its face, can secure relief by habeas corpus on the ground that the grand jury which presented the indictment was illegally constituted.
We think the trial court was eminently correct in applying a negative answer to this question. The second grand jury was at least the de facto grand jury for Broward County and no indictment returned by it could be collaterally attacked by habeas corpus. This is true whether the grand jury be de facto or de jure. 25 Am.Jur. Section 46, pages 177-178, 38 C.J.S., Grand Juries, § 25, p. 1014. See also Section 40.43, F.S.A. dealing with the same subject matter.
In Graives v. Stone, Sheriff, 124 Fla. 339, 168 So. 407, we pointed out the procedure for assaulting irregularities in drawing, summonsing or empaneling grand juries and the procedure there approved was not followed in this case. The judgment appealed from might be appropriately affirmed on authority of the last cited case. Aside from all that we have said, it may be asserted that appellant is not entitled to be indicted by any particular grand jury and it is not contended that he was in any way prejudiced by the indictment or the grand jury which returned it.
Affirmed.
ADAMS, C.J., and THOMAS and ROBERTS, JJ., concur.