348 So. 2d 415 | Fla. Dist. Ct. App. | 1977
Did the trial court err in adjudging appellant Feldman to be in contempt of court?
While conducting an investigation of certain activities of State Insurance Commissioner Thomas O’Malley
With commendable candor, the state concedes that the decisions in Salem v. State, 305 So.2d 23 (Fla. 3rd DCA 1974), and Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975), support a reversal. However, the state argues that these decisions are erroneous and that the better view is that espoused by the two dissenting opinions. We adhere to the views expressed by this court in Saunders and by our sister court in Salem.
A proper role of our grand juries is conducting an inquiry into alleged violations of the law. Grand juries were not established for the purpose of “whipsawing” a citizen into ultimately giving contradictory statements upon which the state could institute criminal charges against such citizen. The aphorism that one cannot take the Fifth Amendment on the ground that if he testifies he will perjure himself applies only to the excuse for not testifying
The judgment of conviction is reversed with directions that Feldman be discharged.
. Feldman was the “purchaser” of a portion of O’Malley’s law practice.
. The state limited its inquires to matters not covered in his June, 1974, testimony.
. Feldman’s counsel argues that the title of this statute, Perjury by Contradictory Statement, is a misnomer, since it has little to do with common law “legal” perjury which requires a witness to willfully make a false statement; that on the contrary, this statute authorizes prosecution where a witness makes two “truthful” but contradictory statements.
. Feldman stated to the court:
“. . . [Sjince this proceeding started earlier this morning, when we appeared before Mr. Willis subject to his subpoena, and through the arguments here, sir, there is no doubt in my mind that there is an effort to find me to be reciting testimony or statemens [sic] which I cannot recite at this time because they may be in conflict with prior testimony and that should I do so, sir, they will prosecute me for making these conflicting statements.
“I am prepared to swear to this Court, sir, that in June, when I gave the original testimony it was the truth. I am prepared now to swear that as of June that testimony that I gave was the truth. I am prepared to go before the Grand Jury and give truthful testimony of all matters that I know outside the scope of what the State has already interrogated me on.
“I feel as though if the same questions were asked to me today as they were in June, some of my statements may conflict with those given in June and,. for that reason, I immediately subject myself to prosecution. I am not prepared to tell the State, the Grand Jury or Your Honor anything that is not the truth. I recognize that if I lie to anybody I am subjecting myself to perjury and there is no excuse for that.
“I am in a dilemna [sic], in the horns of a dilemna [sic]. As I just told the Court, I have never willfully — I have always told the truth, never said a word that was not the truth, and I recognize that if I do lie I am subject to perjury. If the Grand Jury and the State is willing to say, ‘Let us interrogate you about all of those matters’, relieve me of the potential conflict, ‘How do you remember those situations as of this date?’ Sir, I am prepared to go in' and testify all night but they are asking me now to confirm statements made in June of 1974, as of February of 1975 and, sir, I cannot do it in all good conscience because there are some matters which have come to my attention which will create some conflicting testimony.”