42 Fla. 266 | Fla. | 1900
Plaintiff in error was indicted for embezzlement at the Fall term, 1897, of the Circuit Court of Calhoun county, and was convicted on one of the counts in the indictment at the Spring term of the court, 1899. Before pleading not guilty to the indictment the defendant interposed pleas, in substance, as follows: That an attorney and counselor of the court, giving name, being the retained private counsel of one H. B. Gaskin, in the indictment named, was before the grand jury and pres
As indicated by the record the defendant filed two separate pleas, though it seems the State Attorney regarded them as one pleading and demurred to them as
The pleas come under the head' of what is known as dilatory pleas and as to them the settled rule is that the greatest accuracy and precision in pleading are required and they must be certain to every intent and free from uncertainty and ambiguity. Reeves v. State, 29 Fla. 527, 10 South. Rep. 901; Jenkins v. State, 35 Fla. 737, 18 South. Rep. 182.
The basis of objection to the indictment stated in the pleas is that an attorney and counselor of the court other than the duly appointed State Attorney improperly went before the grand jury when considering the indictment and urged and requested them to find it. The indictment as shown by the record was signed by the duly appointed State Attorney and there is nothing to show affirmatively that the attorney and counselor who went before the grand jury was appointed by the court, or was procured with the consent of the court, to assist the State Attorney in any way.
By statute it is provided (§1354 Rev. Stats.) that “whenever there shall be a vacancy in the office of State Attorney in any of the judicial circuits of this State,, either By. non-appointment or otherwise, or if a State Attorney shall not be present at any regular or special term of the court, or, being, present, shall from any cause be unable to- perform the duties of his office, the judge of said Circuit Court shall have full power to- appoint a prosecuting attorney from among the members of the bar, with the consent of the member so- appointed, to whom shall be administered an oath to- faithfully discharge the duties of State Attorney, and who shall have as full and complete authority, and whose acts shall
The indictment being signed by the duly appointed State Attorney, we must assume that he was present and able to perform the duties of his office, and that the attorney and counselor who- went before the grand jury was not appointed by the court as acting State Attorney under section 1354. There is nothing in the record or statements of the pleas to exclude the view that he may have been'procured by and with the consent of the court under Sec. 1355 to assist the State Attorney and under the strict construction in reference to such pleas we are authorized to assume, if necessary to. sustain the action of the court, that he was so procured. Proceeding upon the view, as we are authorized to assume in the absence of clear allegations excluding it, that the counsel who went before the grand jury did so by procurement of the State Attorney, by and with the con
The pleas state that the counsel was before the grand jury, and present with that body during the examination of evidence and its deliberations in the case, and in one it is alleged that he was present during the examination of evidence and the deliberations of the. grand jury in the case and at the time of taking the vote on the bill of indictment, and being so present before the indictment was found, he did at such time urge and request the grand jury to find the indictment. The statute (section 1355) authorizing State Attorneys to procure assistant counsel to go before the grand jury declares what shall be the duties of such assistants — to
By statute in this State it is made the duty of the State Attorney, when required by the grand jury, to attend them for the purpose of examining witnesses in their presence, or of giving legal advice in any matter before them. Sections 1345 and 2807, Rev. Stats. This, provision simply imposes official duties and does not, probably, in any way detract from the powers which such officers have at common law. The provision in reference’ to assistant counsel before the grand jury, found in section 1355, defines their duties and expressly limits their action, and the courts should be careful not to extend the rule beyond the policy of the statute. The presence of assistant counsel before the grand jury during the examination of evidence would afford no ground for setting aside the indictment, and his mere presence at the time the vote is taken, in the absence of any abuse shown, may not be sufficient to- accomplish that end. When, however, such counsel,’after remaining in the grand jury room during the examination of evidence and the deliberation of the jury in the case, including the time when the vote is taken, urge and request the finding of the bill, it seems to us that the right of an indicted party to a free and unbiased judgment of the jury on the merits of the case has been invaded. It is not perceived how the policy of the statute can be preserved if the practice be sanctioned that such attorney may not only be present with the grand jury when testimony is examined and the case is deliberated on, but remain with the jury when the. vote is taken and urge and request them to find the bill. To urge and request a grand jury to find a particular bill after the ex-
Proceeding upon the theory that the attorney who went before the grand jury was procured by the State Attorney as assistant, with the consent of the court under the provisions of our statute, it appears to us that the pleas show such action on the part of the attorney in the deliberations of the grand jury in finding the bill as to come within the prohibition of the statute, and reasonably calculated to influence the jury to the prejudice of the accused. When this is affirmatively shown, the decided weight of judicial opinion in this country sustains the view that the indictment should be 'set aside.
If we proceed upon the theory that the attorney who went before the grand jury did so without any sanction of the court, there is still less ground for sustaining the ruling of the court. No case that we have found sanctions the right of private counsel to assume the sole and exclusive charge and management of a case before a grand jury, and not. only remain with them during the examination of evidence and their deliberations thereon, but request and urge them to find a true bill. The secrecy of the grand jury secured by our statute and designed to preserve the freedom and independence
We conclude that the court erred in sustaining' the demurrer to the pleas, but this ruling' is confined strictly to the facts admitted by the demurrer in this case.
Judgment reversed with direction that the demurrer to the pleas in abatement be overruled, with further proceeding consistent with law.
The other points raised are not determined.
Judgment reversed.