Swilley v. State

Supreme Court of Florida

Swilley v. State

79 So. 715, 76 Fla. 173

CourtSupreme Court of Florida

DecidedAugust 3, 1918

StatusPublished

Cited by10 cases

This text of 79 So. 715 (Swilley v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Swilley v. State, 79 So. 715, 76 Fla. 173 (Fla. 1918).

Pincite

Opinion

Taylor, J.

This canse comes on for hearing on the plaintiff in error’s motion for an order remanding him to the custody of the Sheriff of Hamilton County from the custody of the officials of the penitentiary pending his writ of error from this court to review a judgment of conviction for larceny in the Circuit Court of Hamilton County. It appears that in his application to the Circuit Judge for an order adjudging him to be insolvent for the purpose of relieving himself of the payment of the costs of his trial and of his writ of error from this court, the plaintiff in error after showing that he was utterly insolvent and unable to pay the costs of the trial or of the appellate proceedings either in whole or in part, and that he had no property or means of any sort, and that he had not divested himself of any property for the purpose of obtaining the benefit of his oath of insolvency, on being questioned by the judge made answer: “that he thought he could get a friend to pay the costs for him,” whereupon the Circuit Judge solely on said quoted answer by the plaintiff in error adjudged him to be not insolvent and refused to supersede the sentence, and the plaintiff in error was thereupon turned over to the penitentiary officials.

The Circuit Judge erred in withholding his order adjudging the plaintiff in error to be insolvent solely on the quoted answer of the plaintiff in error to the effect “that he thought he could get a friend to pay said costs for him.” The question in such inquiries is not what the prisoner’s supposed friends have the ability to do in paying said costs, or their readiness or willingness to pay [175]*175them, but has the defendant himself personally the financial or property ability to pay them or secure their payment. It is, therefore, ordered, that the plaintiff in error be remanded to the custody of the Sheriff of Hamilton County from the custody of the officials of the penitentiary pending said writ of error, and that the Circuit Judge make the order of insolvency applied for.

Browne, C. J., and Whitfield,, Ellis and West, J. J., concur.

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Taylor, J.

This canse comes on for hearing on the plaintiff in error’s motion for an order remanding him to the custody of the Sheriff of Hamilton County from the custody of the officials of the penitentiary pending his writ of error from this court to review a judgment of conviction for larceny in the Circuit Court of Hamilton County. It appears that in his application to the Circuit Judge for an order adjudging him to be insolvent for the purpose of relieving himself of the payment of the costs of his trial and of his writ of error from this court, the plaintiff in error after showing that he was utterly insolvent and unable to pay the costs of the trial or of the appellate proceedings either in whole or in part, and that he had no property or means of any sort, and that he had not divested himself of any property for the purpose of obtaining the benefit of his oath of insolvency, on being questioned by the judge made answer: “that he thought he could get a friend to pay the costs for him,” whereupon the Circuit Judge solely on said quoted answer by the plaintiff in error adjudged him to be not insolvent and refused to supersede the sentence, and the plaintiff in error was thereupon turned over to the penitentiary officials.

The Circuit Judge erred in withholding his order adjudging the plaintiff in error to be insolvent solely on the quoted answer of the plaintiff in error to the effect “that he thought he could get a friend to pay said costs for him.” The question in such inquiries is not what the prisoner’s supposed friends have the ability to do in paying said costs, or their readiness or willingness to pay [175]*175them, but has the defendant himself personally the financial or property ability to pay them or secure their payment. It is, therefore, ordered, that the plaintiff in error be remanded to the custody of the Sheriff of Hamilton County from the custody of the officials of the penitentiary pending said writ of error, and that the Circuit Judge make the order of insolvency applied for.

Browne, C. J., and Whitfield,, Ellis and West, J. J., concur.

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Bluebook (online)

79 So. 715, 76 Fla. 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swilley-v-state-fla-1918.

Opinion

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