Boynton v. State Ex Rel. MincerBoynton v. State Ex Rel. Mincer
The point for determination is whether or not the trial court committed error in entering the permanent injunction against defendants and in abating certain gambling nuisances at specified addresses in Dade County.
It is not denied that Boynton and other named defendants had purchased and were in possession of a Federal gambling stamp. The business addresses of the purchasers were listed and correspond to the premises described in the complaint. It is also shown that each defendant paid the price exacted to secure the stamp and as required by
Relying on the fact that defendants purchased Federal gambling stamps, listed the places where they propose to conduct gambling activities, and paid the excise tax required by
The State meets this defense head on with the postulate that it dissolves under the immunity statute,
“No person shall be excused from attending and testifying, or producing any book, paper or other document before any court upon any investigation, proceeding or trial, for a violation of any of the statutes of this state against bribery, burglary, larceny, gaming or gambling, or of any of the statutes against the illegal sale of spirituous, vinous or malt liquors, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.”
Supporting its contention that the immunity statute relieves defendants from prosecution, the State says that every allegation in the complaint went to the gambling activities of appellants, that they were required to answer these allegations, that Equity Rule 34, 31 F.S.A., requires them to admit or deny each charge in the complaint and had they done so they would have been granted immunity from prosecution. The State also contends that their failure to deny the charges amounted in law to a direct admission of them and when admitted they were proof sufficient to support the court‘s decree. A thorough discussion of the quoted immunity statute as to witness before a grand jury may be found in State ex rel. Mitchell v. Kelly, Fla., 71 So.2d 887.
The protection against self-incrimination guaranteed by the Declaration of Rights is applicable to any evidence, documentary or oral, that tends to convict one of crime or subject him to penalty or forfeiture; whether the prosecution, penalty or forfeiture involves a civil or criminal act is not material. Florida State Board of Architecture v. Seymoure, Fla., 62 So.2d 1. Then if defendants plead self-incrimination and the Court grants immunity could it then adjudicate the place to be a nuisance and abate it? The statute is not explicit as to how a gambling nuisance should be abated, but it is generally done by padlock, sale or confiscation of the property. In whatever way done, it would amount to a penalty imposed on defendants despite the fact that they are entitled to the privileges of the immunity statute.
Account of the fact that the gambling tax invades a field thought by some to be accorded the States, it raises questions not heretofore adjudicated. If the State can accomplish what it proposes by the immunity statute, defendants have by their bargain with the State turned state‘s evidence or admitted themselves into the penitentiary. If this be the result, should not the State be estopped from prosecuting them for operating a gambling house? Wilson v. State, 134 Fla. 390, 184 So. 31. By the same token if defendants may be
In State v. Kelly, supra [71 So.2d 887], we held that “when the witness gives testimony responsive to questions which are relevant to such subject matter, the witness is free forever from being subjected to a penalty, forfeiture or prosecution for any offense substantially connected with the transaction, matter or thing concerning which he testified if any testimony so given in such inquiry constitutes a link in the chain of evidence needed to prosecute such witness thereafter charged for such offense revealed by testimony he was required to give, whether such testimony is used or not.”
The constitutional validity of the 10% excise gambling tax does not appear to have been passed on by the Supreme Court of the United States, but in United States v. Kahringer, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754, the Federal gambling stamp was approved and held not in violation of the privilege against self-incrimination guaranteed by the
In Clark v. State, 68 Fla. 433, 67 So. 135, 136, this Court held that testimony given by defendant in a Federal Bankruptcy proceeding could not be used in a later criminal proceeding in the State. “To permit the introduction of such proffered testimony would be violative of the provition of
If payment of the 10 percent excise tax for the privilege of gambling is to be treated as a confession, it is condemned by McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. The McNabb case has to do largely with physical factors involved in securing a confession, but where law exacts the confession the same rule must apply. In Rodriguez v. Culbreath, Fla., 66 So.2d 58, this Court held that the possession of a gambling stamp was not sufficient to show that the holder was a common gambler or vagrant. Neither would such possession be sufficient
We do not consider it necessary to labor the contention that merely engaging in gambling and no more is sufficient in itself to abate the place as a nuisance under the statute,
In this case it does not appear who the owners of the lands in question are. That fact may become important. The theory of the statute is that property owners are duty bound not to use their property for illegal purposes. Nuisance cases like this are usually directed to the landowner but since the fact of ownership does not appear in this case, we express no opinion as to the effect of the judgment on landowners who are not before the Court, if there should be such. The pleadings should indicate the owners.
In the pages immediately preceding this, we have detailed some of the facts and cases that make the answer to the question presented difficult. Another factor which gives us trouble is the fact that the answer to the question is concerned with two sovereignties operating in the same territory, both of which have similar constitutional guarantees against self-incrimination. Most of the subordinate sovereignties have immunity statutes similar to
Since two sovereignties with substantially the same guaranty against self-incrimination are involved and the superior sovereignty enacted the law that gives rise to this litigation (gambling stamp act) the Federal question is the one that first presses for adjudication. This question is complicated by the fact that the Federal cases cited herein give us no dependable guide for determination of the question. Some of them indicate that in the Federal Court one cannot plead self-incrimination on the ground that his testimony may be used to incriminate him in the State Court, while others convey the opposite impression. There being a dearth of Federal adjudication on the point apperception which often aids materially gives us no help here. Indeed the Federal Act with which we are confronted makes a sortie into a field to capture taxes that we thought the
In the May 1954 issue, American Bar Journal, Dean E.N. Griswold of the Harvard Law School points out that the privilege against self-incrimination is one of the great landmarks in man‘s struggle to make himself civilized. It is the handmaid of the abolition of torture and has its
Despite the anomalous situation the Federal and State law on the question has produced, neither can deprive the owner of a gambling stamp the right to claim the immunity from self-incrimination granted him by the Bill of Rights in both constitutions, yet that is what the State proposes to do. It cannot be disputed that both sovereignties are in the gambling business; they grant a privilege for that purpose, take a “cut” of the gambler‘s “take“, and, in this case, the State proposes to use the evidence of the gambler‘s right to exploit his trade which he was required to file with the Internal Revenue Department on which to convict him. The gambler has the same right to invoke the protection of the Bill of Rights that the Communist, the lawyer, the teacher and the preacher has, but it is contrary to every principle of fair play and sportsmanship for the sovereignty to exact a “cut” from the gambler‘s “take” and then use the evidence he is required to file with which to entrap and convict him.
For these reasons and others which I have not explored I do not think the State can ground its case on the mere fact that defendants have purchased a gambling stamp and paid the excise tax shown, so the judgment must be and is hereby reversed.
Reversed.
ROBERTS, C.J., and MATHEWS and HOBSON, JJ., concur.
THOMAS and DREW, JJ., Agree to judgment.
SEBRING, J., not participating.