83 Fla. 132 | Fla. | 1922
Lead Opinion
Upon an indictment charging murder in the first degree, the defendant was convicted of manslaughter and took writ of error.
It appears that the defendant was first indicted for manslaughter, that a subsequent grand jury indicted him for murder in the first degree, which indictment was quashed and that the present indictment signed by.a competent State Attorney was then found by the same grand jury.
The first indictment for murder in the first degree was by the court.'‘of its own motion quashed and set aside” on the ground that the acting State Attorney who signed the indictment had “been heretofore employed by private persons to aid the said State of Florida in the prosecution of James M. Oglesby, was thereby disqualified to act as acting State Attorney in said cause.”
A plea in abatement to the last indictment for murder in the first degree, which plea was demurred to, avers in
Pleas in abatement must be certain to a certain intent in every particular. They must leave nothing to be supplied by intendment and no supposable special answer unobviated. Taylor v. State, 49 Fla. 69, 38 South. Rep. 380; Cannon v. State 62 Fla. 20, 57 South. Rep. 240.
The only grounds of challenge to the favor applicable to grand jurors in this State are those provided for by Section 5954, Revised General Statutes. Peeples v. State, 46 Fla. 101, text 102, 35 South. Rep. 223.
A public prosecution for a criminal offense must be conducted by the proper official representative of the State, and must not under any circumstances be placed under the entire management and control of private parties or their attorneys. It is proper, however, for the State Attorney, when there is no express statutory prohibition, to obtain, with the consent of the court, the assistance of other counsel; and other members of the bar are not incompetent to be engaged for such assistance, and taking part in the trial, by reason of being retained and paid by private persons. When such assistants are employed in the case, the State attorney should always remain present at the trial, and see that a public prosecution does not degenerate into a private prosecution, and that the administration of the criminal law is not made a vehicle of oppression for the
Section 5954, Revised General Statutes, 1920, which was Section 2810 of Revised Statutes of 1892, is as follows:
“Any person held to answer to any criminal charge may object to the competency of any one summoned to serve as a grand juror before he is sworn, on the ground that he is a prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution and has been subpoenaed or been bound in a recognizance as such, and if such objection be established, the person summoned shall be set aside.”
If on the averments of the plea in abatement the son in-law of the decedent, who was a member of the grand jury, may be regarded as. “ a prosecutor” within the meaning of the above quoted statute, it is not averred that such grand juror participated in finding the indictment or in the proceedings incident thereto, and the plea in this respect is not certain in every particular and leaves a “supposable special answer unobviated,” being thereby insufficient. In Ketrol v. State the grand juror was disqualified to act in any case, being excluded by statute, 9 Fla. 9.
It does not appear by the plea that after the first indictment charging murder in the first degree was quashed and after a competent Acting State Attorney was appointed by the court, that the grand jury did not again consider the case under proper circumstances and- duly .find, the second indictment for murder in the first degree that was signed by a competent Acting S.tate Atto.rney>..who ap
Privately employed counsel should not take part in the prosecution of a criminal case except as is proper when done under the control of a qualified State Attorney, or Acting State Attorney, or other proper officer of the State. Under no circumstances should privately employed counsel act as the representative of the State in any official capacity except that of an officer of the court as distinguished from an officer of the State. See Miller v. State, 42 Fla. 266, 28 South. Rep. 208; Robinson v. State, 69 Fla. 521, 68 South. Rep. 649.
The evidence is ample to sustain the verdict, and even if there was error in excluding evidence to impeach a State witness, there is other evidence as to the same elements of the offense, that, is legally sufficient to support the verdict and sentence for manslaughter.
Affirmed.
Dissenting Opinion
Dissenting.
A grand jury at the January Term of the Circuit Court
On May 24, 1921, at the next term of the Circuit Court for Seminole County, it was brought to the attention of the Circuit Judge that Mr. George A. DeCottes acting State’s Attorney had been specially employed to assist the State in the prosecution of the case of the State of Florida against J ames M. Oglesby charged with manslaughter. The Circuit Judge ruled that acting State’s Attorney was disqualified in the manslaughter case against Oglesby, and appointed. Mr. A. T. Thetford, a practicing attorney, as Acting State’s Attorney in that case, Mr. Thetford was sworn and duly qualified.
The defendant by his counsel insisted upon a trial, but the State “being unable to set a trial date at this time,” the ease was continued for the term. On the next day Oglesby was indicted for murder in the first degree, for the homicide for which he had been previously indicted for manslaughter.
After the Circuit Judge ruled that George A. DeCottes was disqualified to act as State’s Attorney in the case against Oglesby, and had appointed A.. T. Thetford Acting State’s Attorney to represent the State in that prosecution, Mr. DeCottes went before the ’ grand jury — caused certain witnesses to be summoned and presented to them— caused the grand jury to make an investigation into, the death of J. F. Mann alleged to have been accomplished by James M. Ogle.sby — acted as the legal adviser to the grand jury in the investigation of the. death of Mann, and-.pre? pared and presented to them for the signatures of their
Mr. DeCottes was the only legal adviser that attended the grand jury in the investigation of the ease against Oglesby which resulted in the finding of the indictment for murder in the first degree.
A plea in abatement was filed to this indictment setting up that in the deliberation and proceedings of the grand jury which resulted in their indicting James M. Oglesby for murder in the first degree, they had been assisted and advised by a person who had.no right to be in the grand jury room whom the court had previously ruled was disqualified to act in such capacity.
A demurrer to the plea in abatement was overruled, the court again holding that Mr. DeCottes was disqualified to act as acting State’s Attorney in the cause, and of its own motion quashed and set aside the indictment because of such disqualification. Mr. DeCottes then requested to be relieved from further duty as acting State’s Attorney, and resigned as such. His resignation was accepted by the court, and Mr. A. T. Thetford appointed acting State’s Attorney for the remainder of the term.
The record discloses that prior to finding the first indictment for murder in the first degree, the Circuit Judge ruled that Mr. DeCottes was disqualified as acting State’s Attorney in the proséeution of James M. Oglesby, and A. T. Thetford was appointed to represent the State in that case. Upon the subsequent resignation of George A. De-Cottes, the duties of Mr. A. T. Thetford as acting State’s Attorney to prosecute the case against Oglesby only, were extended, and he was appointed acting State’s Attorney
This was on the 30th of May, 1921. The court then took a recess until 9 o ’clock A. M.,. the following day, when another true bill for murder in the first degree against James M. Oglesby was returned by the same grand jury, who had before them only the same witnesses who had been presented to them by Mr. DeCottes when he was improperly before them, advising, assisting and directing them in their deliberations.
A plea in abatement was filed to this second indictment for murder in the first degree and a demurrer to it sustained, and this is made the basis of an assignment of error that I think is well taken.
This plea in abatement set up that - George A. DeCottes “without the consent of the duly elected State’s Attorney,” “and without consent of the acting State’s Attorney,” “and without the consent of the Judge of the 7th Judicial Circuit” appeared before the grand jury, caused witnesses to be summoned, presented the witnesses to the and conducts their examination, he advises the grand jury in investigating the ease against Oglesby, and “that the said grand jury so guided and requested and aided and advised by the said George A. DeCottes, did present a true bill and indictment against Jas. M. Oglesby charging him with murder in the first degree,” and that “Geo. A. De-Cottes was the sole and only legal adviser that attended the grand jury in the investigation of the case of the State of Florida v. Jas. M. Oglesby.”
The duties of an attorney for the State in attendance on a grand jury are not perfunctory. He is expected to and does render services to them that assist them in reach
When the grand jurors then by their vote give expression to their mental attitude with regard to the guilt or innocence of the accused, and -if they believe that he is guilty the State’s Attorney or some typist or scrivener for him, performs the manual work of putting their finding on paper. It was not the mere writing of this paper, that caused the court to overrule the demurrer to the first plea in abatement and hold that Mr. DeCottes was disqualified. His disqualification extended to whatever he did in the grand ¡jury room, that the State’s Attorney if present might have done, which produced in the minds of the grand jurors an abiding conviction of the guilt of the accused,- and the expression of that conviction by their vote to charge him with the crime of.murder in the first degree. This frame of mind was induced, and the opinion of the grand jurors formed, while Mr. DeCottes was improperly before them, guiding, assisting and advising them in their. deliberations; and their frame of mind, — their mental attitude — their faith in the guilt of the accused— necessarily were reflected and made manifest in whatever they subsequently did.
■ It is-inconceivable that the -court in overruling the demurrer to the plea in abatement to the first indictment for murder in-th? first degree merely intended to destroy the
To say that this could be cured by destroying one indictment and permitting another to be found by the same grand jurors, is futile. Neither does it improve the situation to say that the grand jurors after the first indictment was quashed, recalled and re-examined the same witnesses. That there were no witnesses before the grand jury when the second indictment was found other than those whose testimony brought about the finding of the first indictment, is alleged in the plea in abatement, which the demurrer admits.
Assuming that these witnesses were re-examined in the-, grand jury room, what purpose was served by such a proceeding! The grand jurors had previously heard their testimony and were familiar with it, recalling the same witnesses and having them repeat the testimony with which the grand jurors were already perfectly familiar, was so needless and perfunctory, as to make the proceéding a farce.
It was not.an investigation, as the actual investigation was condüeted while Mi*.' DeCottes was before them, aiding, assisting and guiding them, and both of the indictments were the result of the ratiocinations of the jurors while assisted and guided by Mi*. DeCottes.
I do not mean to imply that Mr. DeCottes did anything improper while in the grand jury room, and from my knowledge of him, I am satisfied he would not. I am satisfied that he did only what the regular State’s Attorney or a duly qualified acting State’s Attoimey should have done; that he presented such testimony and gave such advice as would be helpful to them in shaping their deliberations, forming their opinions, and reaching their conclusions, that having so assisted them that the second indictment for the same offense and of the same degree, resulted from the same influences that produced the first.
My view, that the grand jurors having once heard the testimony and being once advised by the acting State’s Attorney, wherefrom they reached a conclusion, were not and could not be affected by subsequently hearing the
The law recognizes that a juror having once heard and considered the testimony, and reached a conclusion with regard to it, cannot rid his mind of the effect produced upon him so as to be capable of being influenced or affected by subsequently hearing the testimony repeated, and in this the' law comports with the rules of psychology and metaphysics.
I think, therefore, the demurrer to the plea in abatement to the second indictment for murder in the first degre should have been overruled and the plea in abatement sustained.