Dotty v. StateDotty v. State
The appellant (defendant) was indicted for rape. He was tried and convicted by a jury that recommended mercy. A motion for a new trial was denied and defendant was adjudged guilty and sentenced to life imprisonment. It is from this judgment and sentence that this appeal is taken.
Appellant contends the trial court erred in denying his motion to quash the indictment on the ground the prosecuting attorney and the assistant prosecuting attorney were both present before the grand jurors at the same time for the purpose of examining witnesses in their presence and giving the grand jurors legal advice regarding the offense lodged against the appellant contrary to
Appellant‘s position is that
Florida Statute 905.19 confers authority for the prosecuting attorney to attend all sessions of the grand jury. The purpose of a prosecuting attorney in attendance of a grand jury is not perfunctory. He assists and renders many services to them, and it has long been established throughout the country and in this state that an “assistant to the state attorney” may be present with the state attorney before the grand jury to give legal advice. Miller v. State, 1900, 42 Fla. 266, 28 So. 208; Taylor v. State, 1905, 49 Fla. 69, 38 So. 380. Other jurisdictions are in accord:
“* * * `Assistant or deputy prosecuting officers and special assistants to the regular prosecuting officer, duly authorized to assist the latter in the discharge of his duties, are invested with
the same rights and subject to the same restrictions, with respect to appearing before the grand jury and participating in the proceedings before that body as the regular prosecuting officer * * *.’ 38 C.J.S. Grand Juries § 40b, p. 1043; 4 A.L.R.2d 400; Meyers v. Second Judicial District Court, 108 Utah 32, 156 P.2d 711, 713; Shoemaker v. State, 58 Okla. Cr. 394, 53 P.2d 1133, 1134; State v. Coleman, 226 Iowa 968, 285 N.W. 269; State ex rel. Graves v. Southern, 344 Mo. 14, 124 S.W.2d 1176; People v. Blair, 17 Misc.2d 265, 33 N.Y.S.2d 183, 189; Commonwealth v. Brownmiller, 141 Pa.Super. 107, 14 A.2d 907; accord Clarke v. State, 44 Ga. App. 341, 161 S.E. 674; Christopher v. State, 21 Ga. App. 244, 94 S.E. 72; Williams v. State, 69 Ga. 11, 28. * * *” Mach v. State, 1964, 109 Ga. App. 154, 135 S.E.2d 467.
As the population of this state increased it became apparent that assistants other than those provided for by
An assistant state attorney‘s function encompasses within it much more than those functions of an assistant to the state attorney. When the legislature promulgated
In ascertaining the meaning and effect to be given in construing a statute the intent of the legislature is the determining factor. Although in its elementary sense the word “or” is a disjunctive participle that marks an alternative generally corresponding to “either” as “either this or that“; a connective that marks an alternative. There are, of course, familiar instances in which the conjunctive “or” is held equivalent to the copulative conjunction “and“, and such meaning is often given the meaning “or” in order to effectuate the intention of the parties to a written instrument or the legislative intent in enacting a statute when it is clear that the word “or” is used in the copulative and not in a disjunctive sense. Pompano Horse Club, Inc. v. State, 1927, 93 Fla. 415, 111 So. 801, 52
Consistent with the intent of the legislature, laws which are penal in nature should be strictly construed while laws that are remedial in nature should be construed liberally. State ex rel. Cooper v. Coleman, supra. A statute is penal in nature if it imposes punishment for an offense committed against the state and its term includes all statutes which command or prohibit acts and establishes penalties for their violations to be recovered for the purpose of enforcing obedience to the law and punishing its violation. However, a statute relating to procedure is remedial in nature in that it gives a remedy and tends to abridge some defect or superfluities of the common law.
To give effect to the evident legislative intent in construing
The legislature in promulgating
We have carefully considered the other points raised on appeal by the appellant and find no error.
Affirmed.
ANDREWS, Acting C.J., and McLANE, RALPH M., Associate Judge, concur.