concurring.
In Tanner v. Wiggins, 54 Fla. 203, 45 South. Rep. 459, 1 ‘ the record clearly showed that there was a legal sentence imposed by a court of competent jurisdiction,” and it was there held that “a defect in the commitment or mittimus cannot be made to avail in the habeas corpus proceedings.” Here no judgment or sentence is shown by either party.
In this case the petitioner alleged on oath that his detention was “unlawful,” and prayed that the sheriff be required to produce before the court “the body of the petitioner together with the day and cause of his detention. ’ ’
Whether the allegation of the petition complied with the requirement of the statute that the petitioner “shall show by affidavit or evidence probable cause to believe that he is detained in custody without lawful authority” (Sec. §3571 Rev. Gen. Stats. 1920) so as to authorize the issuing of a writ of habeas corpus, need not be -discussed now, since the court below issued the writ and the Attorney General representing the State has not questioned its propriety. See Stillman v. State, decided at this term; 12 R. C. L. 1231.
The return of the sheriff alleges that the petitioner is held by virtue of a commitment; that petititoner was convicted “of the offense of being unlawfully drunk and intoxicated by the voluntary use of intoxicating liquors, and tenders herewith the said writ of commitment;” and that the sheriff has no other right to hold the petitioner in custody.
The commitment issued by the judge which controls, at least in the absence of a showing of a valid judgment of conviction and sentence, merely recites that petitioner *180was “tried and convicted of the offense of drunkenness.” Neither the charge, the verdict nor the judgment and sentence of conviction is shown by the petitioner or by the State.
When the judgment is not shown, it must be assumed that the commitment properly states the judgment of conviction and sentence on which it is issued. See 16 C. J. 1329; 29 C. J. 68.
The statute making “drunkenness by the voluntary use of intoxicating liquors,” a crime having been repealed, leaving only the statute making it a crime “to become drunk or intoxicated,” and there being no similar common law offense, the commitment reciting that the petitioner was “tried and convicted of the offense of drunkenness,” is not a sufficient warrant for the petitioner’s detention in custody, when a valid judgment of conviction is not shown. If there be a valid judgment, a proper commitment may be issued thereon. 12 R. C. L. 1210; 14 Ann. Cas. 133; 16 C. J. 1329; 58 South. Rep. 855.
Ellis, J., concurs.