On Rehearing.
Whitfield, J.The petition for writ of habeas corpus presented to the Circuit Judges of the Circuit Court for Duval County alleges: “That your petitioner, Jack Still-man, is confined and restrained of his liberty in the county jail of Duval County, Florida, by virtue of a certain commitment, by the Sheriff of said Duval County, Florida, a certified copy of ivhieh commitment is hereto attached and marked exhibit ‘A’ and by special reference prayed to be made a part hereof. That on the 11th day of January, A. D. 1923, at a preliminary hearing before Hon. John W. DuBose, County Judge of Duval County, Florida, certain testimony was adduced upon which the commitment was based, that a copy of. said testimony is hereto attached and marked exhibit ‘B’ and by special reference prayed *173to be made a. part hereof. That your petitioner is informed by counsel and verily believes that the testimony referred to did not disclose sufficiently to find that probable cause existed to bind your petitioner over to the action of the Criminal Court of Record for Duval County, Florida, and that the action of the said Hon. John W. DuBose, County Judge, in forming such conclusions were erroneous.
The premises considered your petitioner prays that a writ of habeas corpus do issue, directed to R. E. Merritt, as Sheriff of Duval County, Florida, commanding him on a day, place and time, mentioned and specified therein, to have and produce the body of Jack Stillman or by whatever name the said Jack Stillman may be called or held, together with the cause or causes of such detention, before this Honorable Court, in order that this court may enquire into the cause or causes of such detention and to do, take and receive whatever this court may direct, and that your Honors enter an order discharging your petitioner from further custody. ’ ’
A writ of habeas corpus was issued, and on hearing the Circuit Judge made the following order: “This cause coming on to be heard upon the writ of habeas corpus, the return thereto and the evidence adduced at the trial, it is ordered that the petitioner Jack Stillman, be, and is remanded to the custody of the Sheriff of Duval County, and that the petitioner pay the costs of this proceeding.’
A writ of error was. allowed and taken under the statute. Sec. 3580, Rev. Gen. Stats. 1920.
It is contended that “the Circuit Judge erred in remanding the petitioner to custody, as all the facts in this case show that the evidence obtained by the sheriff upon which he based his authority to arrest the petitioner was *174obtained by him as the result of an unlawful and illegal search. ”
Section 3571, Revised General Statutes of Florida, 1920, provides that: “Whenever any person detained in custody, whether charged with a criminal offense or not, shall, by himself or by some other person in his behalf, apply to the Supreme Court of the State of Florida or to any justice thereof, or to' any circuit judge, in vacation or in term time, for a writ of habeas corpus, and shall show by affidavit or evidence ' probable cause to believe that he is detained in custody without lawful authority, it shall be the duty of the court, the justice or judge to whom such application shall be made forthwith to grant the writ, signed by himself, directed to the person in whose custody the applicant is detained, and returnable immediately before such court, justice or judge, or any of said courts, justices or judges, as the writ issued may direct. ’ ’
If the petition is otherwise adequate in substance to “show probable cause to believe that petitioner is detained in custody without lawful authority, ’ ’ so as to warrant the issuing of a writ of habeas corpus under the statute, the allegation that petitioner “verily believes that the testimony referred to did not disclose sufficiently to find that probable cause existed to bind your petitioner over to the action of the” trial court, “and that the action of the” committing magistrate “in forming such conclusions is erroneous,” are insufficient, since habeas corpus does not lie for mere errors affecting the weight of the testimony, at least when there is any substantial legal evidence to sustain the judicial action complained of. In this case bail in $500.00 wás fixed by the committing magistrate, and it does not appear that petitioner was hindered in availing himself of his constitutional right of bail.
However, the petitioner was remanded, and if no error *175was committed, therein, the question as to the sufficiency of the petition as a basis for issuing the writ need not be further adverted to.
. The record does not contain a commitment or any return made by the sheriff to the writ.
Assuming that the order of commitment was upon a charge of unlawful transportation or unlawful possession of intoxicating liquors, the question to be determined .is whether there is any substantial legal evidence as á predicate for the order of the committing magistrate requiring the petitioner to give bail for appearance before the trial court. The proceedings before the. committing magistrate appear to have terminated as follows:
“Mr. Stillman: I move the discharge of the defendants from further custody on the ground that the State has failed to make out a case or to.show probable cause why .they should be held. The Court: (After argument) .The motion will be denied. Mr. Stillman: How much bond? The Court: Five hundred dollars each. ’
“At common law the rule is, that if, upon the preliminary examination of a person accused of crime, ‘it manifestly. appears that either no such crime .was committed, or that, the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he must be committed to prison or give bail.’ The strict rule of the common law does not, however prevail in the modern practice in this country. Here it is a sufficient reason for holding accused to answer that the evidence adduced on the preliminary examination shows that an. offense has been committed, and that there is probable cause to believe accused •to be guilty thereof; and it is not necessary that the evidence should be of such a nature as would be necessary to convict accused upon his final trial.’’ 16 C. J. 330; 1 *176Wharton’s Crim. Proc. (10th ed.) §114. See also 29 C. J. 63; 16 Fla. 283; 49 Fla. 126.
It appears that after ten o’clock at night the sheriff received information that three automobiles containing intoxicating liquors were enroute towards Jacksonville, in Duval County; that the sheriff and deputies intercepted the cars in Duval County and arrested the occupants, including the petitioner who was driving one of the cars; that all the cars contained quantities of’ intoxicating liquors. The sheriff testified before the committing magistrate: “I guess I was the fii'st man up to Mr. Stillman’s car. As I say, we had our car still blocked across there, and he tried to drive around it but there were so many of us there he had to run over somebody or stop, and he could have gotten around all right if we hadn’t been in his way. So I walked up to the side of the car with my flash light, and he says, ‘Hello, Sheriff,’ I says, ‘Hello.’. He says, ‘I am Stillman, Dick Stillman’s brother.’ I says, ‘You are the very unan we are looking for.” He says, ‘What are you looking for me for?’ I says, ‘For liquor.’ I says, ‘We got the other two cars ahead of you, a lady and two men in your party, and we have been laying here for two hours.’ I says, ‘You got a key to that back place?’ He says, ‘Yes.’ I says, ‘Let me have it.’ He says, ‘I got a load of liquor, no use to deny it. ’ He says, ‘ I got a load of liquor, ’ and then he told us all about those ahead of him and all about it. He says, ‘No use to deny it, I got liquor. Q. Sheriff, he was driving the ear ? A. Yes. Q. Did you look in the back and see the liquor? A. I don’t think I did. I saw the liquor but I don’t think — no, I didn’t. Q. Did you see it in the car ? A. I took it out of the car down at the jail. That was the same car? A. Yes. I think we had to send to the jail to get the key down there. Q. That was all in Duval .County, State of Florida ? A. *177Yes. Q. Who took possession of the ear at that time, which one of you? A. I think Eddie Garcia drove that car in. Q. Was it opened up out on the road at all? A. Judge, I don’t know. That was the last car and we were trying to-get it ready to leave there. Mr. Stillman:. Mr. Shackelford said it was opened when he saw it out there. Mr. Shackelford: No, I ddin’t say that. I said when I saw the liquor it had been opened up. I didn’t say where. Q. Addressing Mr. Shackelford: Where did you see it opened up? Mr. Shackelford: It was at the county jail. I didn’t walk back there to the car. I had this lady in charge; and I didn’t walk back there. The Sheriff: He said it was in there. We took his word for it. The Court: You took the same car that was there to the jail and opened it? A. Yes, and he had the key in his pocket. Q. Have you seen that liquor? A. Yes. (That’s all.)
Cross-Examination by Mr. Stillman: Q. Did you have any warrant for this arrest, sheriff ? A. No, sir. Q. Did you have any search warrant authorized you to search that car? A. No, sir. Q. Did you know there was liquor in that car until you had stopped and told him you wanted him for carrying liquor? A. Well, I had reliable information that there was. Q. Did you know it of your own knowledge? A. Oh, no. I couldn’t see through that iron back there. (That’s all.) ” The intoxicating liquor found in the car was not offered in evidence.
This testimony was corroborated and not contradicted.
The Constitution forbids only “unreasonable searches and seizures” .of “persons, houses, papers and effects.” See Houck v. State, 106 Ohio St. 195, 140 N. E. Rep. 112; United States v. Vantrim, 292 Fed. Rep. 497; Underhill’s Crim. Ev. (3rd ed.) Sec. 746; 284 Fed. 996; 290 U. S. 761; 288 Fed. 199; 285 Fed. 145; 286 Fed. 930.
Section 6029, Revised General Statutes, 1920, provides: *178“It shall be lawful for any sheriff,- deputy sheriff, constable, city marshal, police officer or other executive officer in this State to arrest and take into custody, without a .warrant, any person who, in the presence of such-officer, violates any of the penal -laws of this State. ’ ’
• Where an • arrest 'without a warrant is allowed by law, as for an offense being committed or threatened in the presence of-an officer authorized by law to make arrests for such offense, a reasonable search and seizure that is properly incident to a lawful arrest, may be made in a reasonable 'and proper manner by the 'officer making the lawful arrest; but the search and seizure should not' be inappropriate to the reasonable requirements for making effective a lawful arrest. Haile v. Gardner, 82 Fla. 355, 91 South. Rep. 376; Agnello v. United States, 290 Fed. Rep. 671; 1 Wharton’s Crim. Proc. (10th ed.) §34; State v. Quinn, — S. C. —, 97 S. E. Rep. 62, 3 A. L. R. 1500.
Even if the arrest in this case be regarded as unlawful, the statements made by the petitioner as testified to by the sheriff and others and not denied,'coupled with the undisputed testimony that the. petitioner was in fact transporting large quantities of intoxicating liquors, shows that an offense was being committed by-the petitioner; there-, fore the committing magistrate was justified in ordering that bail be given for appearance at the trial court; and assuming that a proper commitment was duly issued, in default of bail, the custody of petitioner by the sheriff was lawful. .
Affirmed.
Taylor, C. J., and Ellis, Browne, West and Terrell, J. J., concur.