*1 tip- employees. its paying wage a minimum the red- tips, know whom is entitled to paying public before A like that cap plan us, railroad. giver for whom tips employees
covertly diverts giver did not them to for whom employers intended tip kind of doubtless would them and to whom intend me an voluntarily to contain given, have been seems not interpretation And think an deception. element of to benefit from employers which permits the F. L. S. A. meaning of the not with the plan accord such does Congress. language used FLORIDA.
HYSLER v. Argued 2, March 1942. December No. 1941. Decided *2 Arnow, with whom Mr. Guy C. P. Crews Mr. Carlton brief, petitioner. for was on the Gillen, E. Joseph Mr. Assistant Attorney General of Watson, Tom whom Messrs. J. Florida, with Attorney M. General, and Woodrow Melvin were on the brief, respondent. for delivered the opinion Frankfurter Justice
Mr. Court. Court of Supreme
After the Florida had affirmed his murder, petitioner applied conviction that court judgment to ask the trial court to review the leave application basis of his was the conviction. The claim witnesses him implicating that the two him against had testified perjured, falsely “coerced, intimidated, because were threat beaten, abused and mistreated” ened with violence and otherwise were the elec by police “promised immunity After consider attorney. tric chair” the district twice ing of Florida denied the matter, Court brought the application. 593, 1 146 Fla. 2d 628. We So. solicitude, here, especially case 313 U. S. view of our guar stake, where life is at for those liberties are the Due Process Clause the Fourteenth anteed Amendment. guides If whether state, for decision are clear. *3 prosecu or the connivance of the
by the active conduct through perjured obtains a conviction the use of tion, standards for it violates civilized the trial testimony, guilt an thereby deprives or innocence and accused of Holohan, liberty Mooney without due of law. process v. Equally 294 U. 103. offensive to Constitutional S. wrung from guarantees liberty are confessions an ac through whether by overpowering will, physical cused his commonly or the more subtle forms of coercion violence Brown degree.” known “the third Mississippi, v. 297 Florida, 278; U. S. Chambers 309 U. S. Lisenba v. 227; v. California, 314 U. this collateral attack upon S. judgment conviction, petitioner bases his claim against on the recantation of one of the witnesses him. cannot, course, He contend that mere recantation of testimony ground invoking for the Due itself Process against However, through Clause a conviction. responsible knowingly her officials used false “by which was extorted from a witness violence and may protection one convicted claim the torture,” against upon Due Process Clause a conviction based such testimony.
And so we come to the circumstances
this ease.
25,1936,
November
as a result
an attempted
On
rob
Surrency and his
bery,
wife, Mayme
John H.
Elizabeth,
On
16, 1936,
were murdered.
December
Hysler was in
dicted for the murder of John
he
Surrency;
tried on
January
was convicted on
21, 1937,
February 12, 1937,
mercy,
with recommendation of
and was thereafter sen
life.
imprisonment
tenced
On February 3,1938, his
sentence was affirmed
Florida Supreme Court.
132 Fla.
So. 350. The record in the
200, 181
case was more
On
pages.
January
1937,
than 3000
15,
Hysler, together
others,
with
Baker
Alvin
two
James
and
Tyler, was
Surrency.
indicted
the murder of Mrs.
A severance
having
granted
Tyler
been
as to
and Baker, Hysler was
15,
on trial on March
placed
1937, and on April 5 was
found guilty without
recommendation of mercy. On
he
April 23,
was sentenced' to death. On
1937,
April 24
out writ of error to the
sued
state
Court,
February
on
3, 1938,
sustained the
sentence,
rehearing.
on
3 denied
record on
June
this second
trial was
pages.
some
Fla.
415 A story by Tyler. told Baker and careful concur on affirming challenged the conviction now ring opinion “From it is thus: the evidence difficult to see or concluded in the below could have jury understand how the Court We thor guilty. have rendered a verdict other than to find assignment considered and faded oughly each 132 Fla. in the lower court.” error the trial of the cause 209, 235, 181 354, So. 364. by was set
Accordingly, the date for the execution
1939.
February 20,
for the week of
Governor
Florida
for writ of
an
meantime, however,
application
Court
Supreme
made to
corpus by Hysler
habeas
insanity. This was
ground
on the
Florida, partly
136
Fla.
February 20,
denied
Court
re
jail
apparently
and has
563, 187
Tyler
So. 261.
broke
tried after
Baker was
fugitive
justice.
mained
degree, and
in the first
was convicted of murder
Hysler,
was affirmed
His conviction
to death.
sentenced
14, 1939,
March
and a rehear
Court on
Supreme
27,
1939. 137 Fla.
incarceration is due
observe
concept
justice,”
tal fairness essential
to the
very
his
California, supra,
236,
at
even after
p.
Lisenba v.
duly
highest
affirmed
the
court of
sentence has been
full
have a
State,
opportunity
jury pass
has
showing
adequate
such a claim
first makes an
provided
substantiality
of his claim to the
satisfaction
Supreme
of Florida. The
Court
decisions of that
allegation
Court show that a naked
that a constitutional
right
invaded is
A
has been
not sufficient.
petitioner
full
must “make a
disclosure of the specific facts relied
on,”
merely
and not
conclusions “as to the nature and
must
proof
effect of Such facts.”
enable the appel-
court
whether,
late
to “ascertain
under settled principles
writ,
alleged
pertaining
afford,
to such
facts
would
at
prima facie, just ground
least
for an application to the
lower court for writ of
error coram nobis.” Washing-
Florida,
740,
ton
92 Fla.
749,
v.
Florida then had Hysler But wrong complained. of which Constitutional him in refusing whether relief the it remains to consider appeal proper denied a to its Court of Florida Supreme right guaranteed by process protecting corrective Amendment. the Fourteenth was Supreme before the of Florida
Ilysler’s claim Court as it testimony impli- insofar repudiated his that that he now named another man Hysler and as the cated fact Considering crime. the that this instigator years justice four after leaden-footed came repudiation trail of dilatory pro- of the familiar reached the end had instigator who pointed Baker now an and that cedure, right had every of Florida Court dead, Supreme was this repudiation scrutinize with a duty to plain familiarity with facts light its in the eye, critical trials, adduced three been they had this crime as that been before which had records of voluminous Court.1 affi- had four before Supreme Court Florida here must considered be The affidavits Baker.
davits spe Court of denying Hysler’s application, cognizance of its own records. talcing judicial that it cifically stated 594-95, 2d 628. 1 So. 146 Fla. entirety. were before Court —in their One
was made on 8 between April 7,1941; April second on eight- six and evening; seven another between thirty fourth, and nine of the the next night; same day. The most striking feature of this series of retrac- that, tions is his first and new account spontaneous happenings led to the November murders on 25, 1936, Baker does not attribute induce- to coercion or ments made by state authorities at trials the instigator of the crimes. On *7 the contrary, according to Baker’s new story, after the killing of the Surrencys, Tyler “agreed and he between they while were in Cracker in Swamp the Marietta the, section of County, Duval that they would blame lay of planning of robbery of the Surrencys upon Clyde Hysler because had had liquor considerable dealings Clyde with Hysler and him knew well, and the reason that the Hyslers bore a bad reputation reason, Duval County, and for the further Clyde that Hysler’s father had plenty money they thought that by laying the planning of the robbery of the Sur- rencys on Clyde Hysler that his father and his other re- would put up latives sufficient money get to Clyde Hysler out of the trouble and that laying it on to Clyde Hysler, that he, Baker, James and Alvin Tyler would escape the death penalty . . .” suggestion
There is no whatever in this explanation what is now claimed to have been a false accusation that induced was from without. gives five reasons having fixed the blame Hysler on explanation to —an which he had adhered for more than years four all —but these reasons make Baker and Tyler the spontaneous con- cocters of the alleged false charge. It was not until next day, under Baker, leading questions, suggested that his account contemporaneous it, with crime, getting hope “life instead induced of the Even this second affidavit there is no hint chair.”2 knowledge of had prosecutor falsity Only after a third session did his-implication Hysler.3 to ambiguous reply leading another Baker, question, an knowledge suggestion of the convey prosecutor’s original testimony. Baker’s This preceding of force use Harrell, from “Q. promise Mr. was a definite State’s Then it burning? Attorney keep you from to get life, he would see that I would but that he would
A. He said that stay gang yéars. I chain but three that didn’t at the see Q. say played keep prosecuting you? sick You off Simpson Yes, sir, prosecuting, his assistant and Mr. Hallows A. Mr. straight through, Judge case had ordered him to handle the with the cause Mr. Hollows was not familiar case. gone
Q. you Mr. Harrell had out of office Do know whether or not Mr. Hallows had taken office? Judge why him Yes, sir, I think he had and that wanted A. through, carry thing be sure. this but don’t you say along Q. anything about Is there else want line beatings? threats those or right No, can think now.”
A. that is all I sir, you testify 3“Q. promises make what did Now threats implicate Clyde Hysler? *8 they promises, Well, didn’t, and didn’t make no A. Mr. Griffen get me, imprisonment— he me life Hulbert did talk that would Mr. life instead of the chair.
Q. you you promises that would Mr. Hubbert talked to and made get life instead the chair?. Yes, sir.
A. Q. police- What was, police A. That’s what it Harrell. officersand John Attorney Q. Harrell, the at that time? John W. State’s Yes, A. sir. get
Q. you help you sen- Did Mr. Harrell tell that he would a life you testify against Clyde Hysler? tence if would he, me, He and Mr. A. said wouldn’t burn Mr. Acosta get years Carson me out in time.” would three only that bears on testimony the complicity of the alleged in the coercion of prosecutor Baker’s testimony: “Q. you Baker do know whether or not Mr. Harrell Attorney] if you State’s knew was beat up to make [the you testify? Yes, sir,
A. he knows I couldn’t set none of the down, knew it time, sheriff’s force at the knew it later when in I front all of the officers. made Q. When you made that statement you couldn’t set down? I Yes, you
A. can’t set down and wish sir, good, men and those could see that now.
Q. we want care to see—that’s No, you say. all want (Baker nodding A. indicating yes.)” his head April 9, In his final affidavit on returns to the alleged promise Attorney of the that he State’s would not suggestion him. But time “burn” there is this no of any induced or knew false prosecutor by Baker. according
We to Baker’s that, have seen first statement attribution April 7, Hysler’s responsibility his spontaneous and uncoerced. circumstances cast proper scepticism upon case reinforce this and subsequent According claims to the Baker’s of coercion. at lawyers represented Hysler affidavits two who Tyler great examined Baker “at trials, length” accomplices for the presence of counsel two questioned “said as to particularly witnesses were denied case, who in said and said witnesses was involved than the de- anyone was involved said case other that said witnesses indictment; fendants named previously made further denied that statements made under duress them to law enforcement officers were And the or with of reward.” any hope or expectation opinion present separate Chief in his Justice Florida, *9 confession as on Baker’s characterized Baker’s appeal, 29, 137 Fla. voluntary.” free “entirely So. 634, by these four affidavits there were Baker, addition to sig- Their want subsidiary by affidavits others. of
four the sufficiently by fact that on the nificance is attested rehearing of before the Florida motion for this cause Su- Court, placed exclusively upon.the preme reliance was reference whatever was Baker affidavits and no made Nor subsidiary upon affidavits. was reliance these here. made the Court Supreme claim before Hysler’s
The essence of uncon of Florida was that his conviction secured testify Baker was coerced means, stitutional that officials. The Court had falsely by responsible state this on the basis of all judge the of claim substantiality the with its accom namely, petition that was before it, arising cases prior and the records of panying affidavits that Court concluded out of the same crime. The for Hysler’s prima case proof did not make out facie con judgment its asking the trial court to reconsider Court Supreme viction. the Florida ineptly However denying applica the may grounds the for have formulated the Court doubt its action leaves no room for tion, founda the without substantial petitioner’s deemed claim not did finding “petition” the tion. We construe its alleged officials responsibility state show to mean that original falsity Baker’s showing substan failed make petitioner had Florida, procedure local tiality which, according to relief extraordinary in order to obtain necessary our And nobis.4 of error coram furnished the writ motion petitioner’s opinion Court of the allegations alia, inter rehearing “The states, that: knowledge guilty attorney had prosecuting do not show that [Baker], the witness alleged maltreatment *10 independent upon examination of the affidavits finding claim was based leaves no doubt that of insubstantiality justified. It certainly a precludes holding finding justified. that such not a security just
The in State’s of administration its largely upon criminal law must rest the competence of its trial courts. But that not bar Supreme does state exercising vigilance Court from of con- a hardheaded of appeals upsetting sideration to it for a conviction. That the course or years four witnesses die dis- appear, that memories that fade, a sense responsibility may become in- attenuated, repudiations and new criminations like Baker’s on the eve of execution are not unfamiliar as means relieving a others or an hope irrational self—these course are valid not relaxing protection considerations for of Constitu- rights. tional But are relevant in exercising hardy judgment order to determine whether such belated springs disclosure impulse truth-telling or is the product of self-delusion or artifice prompted by instinct self-preservation.
Our ultimate inquiry whether the State of Florida has denied to the petitioner protection the Due Process Clause. record does permit not the conclu- deprived sion that Florida him has of his Constitutional rights.
Petitioner also claims that him Florida has denied “equal protection” of its law. This contention is plainly If without substance. had been singled out for invidious treatment by the Florida Supreme Court, properly complain could here. Yick Wo Compare v. alleged falsity of the witness Baker was known to prosecuting officer. The alleged does show any not by any maltreatment of witness was inflicted officer the trial court same was officer of the known trial court.” Fla. 593, 594, 1 2d So. 628.
423.
Sugar
American
McFarland v.
356;
Hopkins,
U. S.
the Florida
But it is not a fact that
Co.,
Affirmed. *11 Mr. Justice dissenting, with whom Me. Justice Black, Murphy Douglas concur. and Mr. Justice of Florida Supreme the Court application by denied in the mur- accomplices alleges Baker, the Tyler and gave convicted, confessed for which was der “coerced, were testimony against Hysler because false and other- with violence intimidated, beaten, threatened were because mistreated,” abused and wise electric chair. of the life instead sentences promised in the prison of made a state statements Sworn in support of presented were of officials presence prison of four affidavits allegations, as were corroborative these justice, is unavailable fugitive Tyler, others. of verification. an additional source the petitioner petition the stated that Supreme Court has The Florida the of alleged falsity of that “the assert does not prosecuting the officer.” known to was witness Baker the Holohan, this Court held that 294 U. S. v. Mooney “prosecuting its testimony known of the a State use of process denial due of law. is a to be false authorities” occasion to deter- proper this as a however, regard not, doI applies Holohan Mooney only v. the rule of whether mine knowledge prosecuting of “the is that guilty where official. For even responsible other any and not officer” the con- the State believed that of every representative if detail, other every true Baker were Tyler and fessions denial of out a due make petitioner allegations scope grounds, upon which independent process In those cases bearing. Holohan has no Mooney v. on confes- conviction based which this Court held that a by third- accomplices or his wrung from accused sions guarantees the due was offensive to degree methods knowledge there are no indications that clause, process the truth or involved as to the state officials if And deemed relevant.1 falsity of the confessions is, true, are allegations Hysler’s petition and tortured were held incommunicado Tyler and Baker Hysler’s trial, controlling testimony at supplying into which brutality measure of with a conviction tainted to establish a more, without sufficient, I supposed had unable I therefore rights. am Constitutional violation of Court the Florida statement of agree with the been true alleges in his had “if petitioner all court and to to the trial fully made known had been it would defendant-petitioner, tried the jury judgment upon entry of precluded not have along with go Nor do of Murder ...” guilty *12 verdict to be found that statement of approval intimations of the down. just has handed this Court in opinion the solely on the not rest does of this Court opinion The to establish allegations, true, fail Hysler’s that ground in opinion finds the Court process. of due a denial that determination a Supreme Court Florida of the showing of the “to make was insufficient proof” “Hysler’s of procedure the local according to which, substantiality extraordinary the in to obtain necessary order Florida, was nobis.” But coram of error by the writ furnished relief be- opinion in the mentioned is nowhere proof” “Hysler’s denying for given there reasons eight the of low, in any which touches one only the Hysler’s petition, 1 278; 309 Florida, v. Mississippi, S. 297 U. Chambers v. g., E. Brown S.U.
425 the his way upon allegations accepts of credibility as true.
To did be convinced Court Supreme that Florida credibility allegations not on the but pass Hysler’s fully decided these however merely allegations, process, due proved, would not make out a violation of opinion need look further than the below. should to no interpretation for this Florida’s denial support But more Hysler’s petition amply is available other decisions State, Fla. highest Washington 740, 749, v. its court. Supreme Court 259, example, for Florida So. petition a is be determined when such said the issue to alleged” is “whether . . . the before facts —not ground facie, just for afford, prima least proof at —“would coram writ of error the-lower court for a an application That not say nobis.” alleged the facts are deny not when
Court will remedy pursuit further patently so incredible trial court. imposition upon frivolous would be a State, 349, 350, where v. Fla. Thus, McCall guilt the first allegations petitioner denied affidavits, were any supporting without time, were and other directly himself contradicted” “positively stating the petition, denied trial, the court at the witnesses jus trifling with no less than it “would be grant that to however, the court circumstances, Even under such tice.” into “the prob it had looked out that explicitly pointed allegations. And where there of the truth” ability in the court has allegations, plausibility color is a opportunity give petitioner ample meticulous been State, Mr. example, In Chambers v. them. prove opinion for the court its spoke *13 Buford, who Justice for to file writ petition “The leave said: Hysler’s petition true, allegations which, presents coram nobis of error issuing writ. It not ground for would constitute 426 this Court to determine whether or not province allegations true. The
such are determination of such may duly be in the circuit court under question had issues 111 152 So. 707, 713, for that Fla. purpose.” made accom- proof must also in mind that if the It be borne error for for a writ panying apply leave conclusively had coram nobis to be so full as to establish required who allegations, petitioners the truth of the of inaccessible amplifying or corroborative evidence unwilling effectively would barred witnesses be would never have access to this remedy, which a compulsory process to utilize the opportunity light Florida’s trial of the facts would afford. cases,2 liberal treatment of other in other petitioners where unambiguous given its explanation courts have to the denied, have been I cannot petitions impute Court, on the its this opinion basis of inadequate case, Hysler’s “proof” a decision that allegations. support court below
Although it is at best not clear that has not credibility, has canvassed the issue of this Court announced, In the there opinion just hesitated to do so. has even been of considerations relevant de- a recital termining “springs whether the disclosure made impulse truth-telling product from the or is the or artifice of self- prompted by self-delusion the instinct And the apparently Court has concluded preservation.” Hysler’s allegations patently are so incredible hearing. require does not process here, due Where, allegations controlling testimony was extorted 2 State, 208, 497, 502, 121; See Nickels v. 86 Fla. 98 So. 99 So. State, 535; Washington 396, State, 91 Fla. 107 So. v. Lamb v. Fla. 92 740, 259; State, 707, v. 111 Fla. 151 499; 110 So. Chambers So. 437; 642, Fla. So. 117 Fla. So. 153.
427 third-degree supported by methods are sworn statements and not denied by anyone, rejection a summary without hearing by the court first instance would raise serious questions of compliance with the Constitutional requirement of a trial.3 fair Under such circumstances, I should suppose this Court would particularly be reluc- tant the original only make itself of disposition what it major credibility treats as a issue of the case: the of Hysler’s allegations. Court of Florida declined even to con
sider the credibility allegations, proceeding these if which assumption tested principles —erroneous I that, believe of this Court have affirmed decisions 4— true, would be insufficient to the conviction. impugn assumption, Court, this this Having corrected erroneous make my allow the Florida courts to opinion, should con issue have not disposition their own of the “solicitude, granted sidered. We certiorari because a which stake, where life is for those liberties especially at Clause Four guaranteed by are the Due Process teenth That would to call Amendment.” solicitude seem case for further consideration below. remanding this I why impel cannot see it should this Court sustain gratuitous disposition of an issue upon the conviction might resolve state court otherwise. no issue of life or death this Court raising cases to remand to the lower court for further has not hesitated ambiguities in the below opinion where be-' proceedings ground of decision.5 6The clouded the vital issues here 3 v. 312 S. 329. Holohan, O’Grady, Cf. U. Mooney supra; v. Smith 4 309 supra, Alabama, See cited in footnote Canty cases v. 530; 313 Texas, 629; 310 U. v. U. S. Texas, Lomax White v. S. S.U. 544; 313 547. Alabama, Vernon v. U. S. 5 152; v. S. Schaick, Villa v. Van U. State Tax Comm’n Van Co., 511; U. S. National Tea Cott, 306 U. S. Minnesota v. and the manner of treatment below me compel to believe like procedure should be followed now. Because the basis for my belief can best be shown reference to the record, am adding excerpts from *15 and accompanying exhibits as well as the whole opinion of the Florida in Supreme Court appendix. an
Appendix. Excerpts I. Hysler’s petition for apply leave to for a writ of error coram nobis: “. Alvin Tyler . . and James Baker who were co-defend- ants of the petitioner, Clyde Hysler, upon and whose testimony the State of Florida relied upon for convic- a tion of petitioner was coerced, intimidated, beaten, threatened with violence and otherwise abused and mis- treated in order compelí the said witnesses, Tyler and give testimony at against the trial of said cause petitioner and to implicate said in petitioner killing of Mrs. Mamie Surrency; and further that the said wit- Tyler nesses, and promised Baker were immunity from the electric chair, by John W. Harrell and further promised implicate would Clyde Hysler in said murder testify against and him during the trial of said cause that he. as Attorney State’s of the Fourth Judicial Circuit of together with other enforcing law officers of County, Duval Florida would see that he did not get the chair, and that procure would a pardon and have him released from the State Penitentiary after serving (3) three years of his sentence, all of which is more particularly described by reference to- a statement and affidavit made the said James Baker on the 7th day April, A. D. also by further affidavit and statement made by the said James Baker on the 8th day April, A. D. 1941, and also by statement and affidavit by the made said James Baker on the 9th day April, A. D. 1941, said being affidavit marked ‘A-b and c’ re- spectively hereby and made part of this petition as fully though as set out herein in haec verba. And for further reason that said affidavits show that the said peti- tioner was not implicated murder the said Mrs. Peterson, was the Surrency Joe but one Sr. Mamie petitioner, murder and not the implicated said which person more fully herein Clyde Hysler, all is set out referred to and further sub- herein above affidavits following by photostatie copies affidavits, stantiated to-wit; of one Mosley; of one Ed. affidavit affidavit Ruby of Mrs. Crews affi- Mooney; affidavit one and A. J. Rudolph Dowling, photostatic copies J. said davit of one being g’ respectively, and each of ‘d-e-f said marked being hereby hereto attached and part made a affidavits though fully as set out herein in this haec verba. Tyler Alvin witnesses, the said
“That James Baker following their immediately after and arrest were held long of time period without being incommun-cado counsel, benefit advice of without being allowed with their friends or confer see relatives and allowed being with the allowed confer attorneys without *16 witnesses, Tyler that said and petitioner; the Baker were County from the Duval Jail and in removed confined the Penitentiary with Raiford, at instructions State long one to communicate with for a no to allow immediately following their and arrest, time of period necessary attorneys petitioner for the for to pro- became Duval County of the Circuit Court of order for cure an permission to confer with said witnesses several weeks in only company with, then and in arrest, their and after by attorneys appointed the Court of the presence the attorneys for petitioners witnesses and said represent said from said witnesses diligent effort to ascertain facts made trial to in of testify peti- would said about in diligent trying pro- effort thereby used and tioner, by herein respective as set out the the information cure but witness, Baker, James said witness by the affidavits attorneys to the divulge the truth afraid to Baker was affidavits, in out herein the said a-b set petitioner the as was denied petitioner and that said attached, c hereto and and reason the coercion impartial by trial of fair a intimidation and Tyler and James of Alvin witnesses, the them herein- as promised hope reward Baker and equal reason thereof denied by and has forth, above set by to him the 14th guaranteed law as protection United States Constitution and was Amendment to the process guaranteed of the law as thereby by denied due the United Amendment of States Constitution. the 5th . . . . . Tyler and Baker not witnesses, said been “That had the promised immunity and intimidated, coerced officers in the law enforcement by electric chair Duval in 'a-b and c’ hereto County as described affidavits Harrell herein above described, and John W. testify had been left free to the said witnesses and and being to the Joe the truth as said Sr. Peterson, tell in murder the said Mrs. involved Mamie person Surrency said would petitioner, instead judgment, the rendition of verdict prevented have cause, petitioner this and another sentence cause, petitioner this this be had of would be trial acquitted.
. . . . . alleges petitioner “That further affidavits of being Baker, affidavits hereto1attached witness, James said marked 'a-b and c’ and made Baker James voluntarily part any his and without on freely and part petitioner or on one prompting the statements contained and that said behalf, on presence made in the prison were several affidavits Florida after said James Baker made Raiford, at officials request attorney and talk with the voluntarily see petitioner.” accompanying Hysler’s from exhibits Excerpts
II. (These from the of three transcript conferences are April prison a Florida held *17 in not the statements are Where was under oath. Hysler’s attorney.) form, questioner the deposes . and says: . . . “. James . Surrancy Mrs. killing of Mr. and near after the “That 23rd day on the Jacksonville, in Crossing Grand the man who Tyler, he and Alvin 1936, that of November killing agreed him the time of the said at was with in Swamp in the Cracker they were while section, that County, they lay would Duval Marietta robbery Surrancys the of the planning the blame the had they had considerable because Hysler Clyde upon him Hysler and knew and Clyde well, dealings with liquor in Hyslers reputation bore a bad the that reason the Clyde reason that for the further County, and Duval Hysler’s they thought of money and plenty had father of the Sur- robbery of the planning the laying that his other that his father and Clyde Hysler rancys on get Clyde to money sufficient put up would relatives Hysler it laying Clyde on to and that the trouble out of Tyler escape Alvin would Baker and that James Hysler he, in Clyde truth and that fact, penalty, death the the in the planning robbery implicated not was killing of Mrs. nothing do with the Mr. and to had and Peterson, was the man who Joe Sr. that one Surrancy, but hired the said James Baker and robbery and the planned being after robbery the advised perform to Tyler Alvin by it would be no and trouble, Peterson that Joe the said carry gun, did not and all would Surrancy that Mr. him and take point pistol be to at would to do have deposes says: further that affiant money, in Clyde Hysler way responsible was no “That robbery of Mr. and Mrs. had Surrancy; attempted man rob- it, planned with and the who nothing to do robbery protect to us supposed and was bery Clyde and not Joe Peterson Hysler; Peterson Joe when vicinity attempted robbery immediate in the took killing Surrancys place, and had robbery Peterson and hired planned been that Joe not Surrancy rob Mr. myself to would Tyler Alvin living not been and we would be have still probably trouble.” tell you anything want to me “Q. Baker, Now don’t tell me you I want to Joe Peterson truth, except got you Clyde into all this instead of man that was the Hysler. the man.
A. he is Yes, sir, Tyler planned lay this all Q. you Then and Alvin get out Clyde Hysler try order it yourself life get sentence instead chair? *18 Yes, A. sir.
“Q. brought You what you recall officers over here? A. Mr. Gene Grillen Dick and Mr. Barker and some more officers.
Q. promises Now what or threats did they you make testify implicate Clyde to Hysler?
A. en Well, Griff didn’t, Mr. they didn’t make no Mr. Hulbert did talk to promises, me, that he would get imprisonment me life instead of the chair. —life Q. Mr. to you Hubbert talked and made promises that you get life would instead chair? Yes,
A. sir.
Q. police- What A. what it was, police That’s officers and John Harrell. Q. John Harrell, W. the State’s Attorney at that time? Yes, A. sir.
Q. Did you Mr. tell Harrell that he you would help get life if you against sentence would testify Clyde Hysler?
A. me, He said he wouldn’t burn that he, Mr. Acosta get Carson Mr. would me out in time. years three Q. Detective Was Cannon you talking about and — and Inspector Acosta- A. The two yes men that arrested me, sir.
Q. you Now from the time was arrested, Baker, how long you kept yourself before you was allowed your talk lawyer your or friends?
A. the time I From was arrested until 21st of Jan- we back uary, my till went and had trial set.
Q. The day you arraigned were Circuit Court the trial? Yes,
A. sir. Q. being You your was held to self without allowed your communicate with friends your lawyer? A. Yes, sir.
Q. When was you arrested? A. It was on the 23rd —24—26—when was Thanks- giving Day just a few days. — Q. You was just days arrested a few after Thanks- giving? Yes, sir.
A. *19 you? officers threaten Did those “Q. any of me in room- They a dark carried A. Q.
That here? carried me they No, Jacksonville, A. sir, me. whipped Marietta and out to that with?
Q. What was canvas, Something covered I don’t know what up A. something looked of hose and like a piece and a it was limb. pine any of those names?
Q. You remember Yes, A. Q. sir. they?
Who were Woods, R. L. and Carson Woods, slapped Mr. Mr. A. jack gave times them the black or and two three me me with. . . . beat (cid:127) Carson presence Woods, in the of Mr. and That was Q. Acosta? Yes,
A. sir. Hysler to make Q. try you implicate That was to Mr. Surrency? Mr. robbery Surrency and Mrs. in the Yes, sir. A. Q. beatings
And been for the and threats if hadn’t years get you here in three as out of promises and Mr. you implicated above would have have you stated at all? in the case Hysler anything didn’t I told them I no about No,
A. cause sir, Hysler’s first trial and between Mr. another thing, and it; County Jail to the after came down one, Mr. Harrell last know if said, you I don’t people, I was allowed see me you too, will have burn burn Mr. you Hysler family and don’t he burn the whole he said could Sidney Mr. Carson Ilulbert, burn cause he and Mr. me run the going to some more officers was Mr. Cannon and running they were it. County long as did the officers threaten “Q. many how times Baker, you were arrested? you beat after you and morning to o’clock in They me about three A. beat got say anything. me to before ten o’clock Q. police It was the you made tell the sheriff’s office? A. Yes, sir.
Q. youWas afraid not to tell thenrwhat they wanted you to, they would beat you some more? afraid A. sir, if Yes, them —I said two words would slap got before the sheriff me, bunch there they had sent out bought me dinner, give me $5.00 $6.00 dollars money, and said don’t tell any me body being about anyone whipped, asked tell them no. me, Q. Then it was a definite promise from Mr. Harrell, Attorney State’s to keep you burning? A. He said that he would I get see that would but life, stay would see that didn’t at the chain gang but years.
three *20 “Q. Baker what about you remarks wanted to make?
A. they Where kicked me.
Q. That at police Jacksonville station?
A. Yes, sir.
Q. Who was that? A. Mr. Carson, thats who had me at that time, he taken me down there where bunch police-was shooting pool. Q! What all did they you? do to
A. Those officers down there asked him if he made me tell him they what wanted to know, and Mr. Carson—-Mr. Carson said not and yet, they said, turn him loose with us about 25 minutes and we will make him say anything they wanted me say, to and told them to take me and hold me they until up went into the office and make a call, and while he gone to make a call they carried me back into a room and put a coat my over head and went to beating me, got I scars on me I want now, to show them you and its you what call risons, you get your can doctor and he will tell you what was caused from blows-
Q. You still have you scars on from that beating? A. Yes- Q. beatings Was those that caused those scars you Clyde
tell on Hysler?
A. To make me tell anything. Q. they Did Clyde mention Hysler’s name you while they were beating you? Yes, A. sir.
Q. you Do know the names of those officers? No, sir, those were new me, they A. officers to speed were n things cops, had those on their shoulders. Q. you Did tell Clyde Hysler was killing in the up mixed or such as that? They
A. said knew he was it—and after I told implicate it was made me him. how him? Q. Implicate Yes,
A. sir. Q. As a matter of fact, was not mixed in it but it was Joe Peterson- They
A. had me hand cuffed behind my back I me, and beat . . was chained .
“Q. you Baker do know whether or not Mr. Harrell make you up you testify? knew was beat I Yes, he knows couldn’t set sir, down, A. none of the force knew it at the time, they sheriff’s I knew it later when front all made of the officers. When made that
Q. you statement you couldn’t set down. Yes, sir, good,
A. can’t set down and I you wish men those could see that now.” opinion III. The of the Supreme Court of Florida on rehearing: (No opinion accompanied motion orig- Hysler’s petition.) denial inal
“Buford, J.: *21 hearing
On motion for application on for an order for leave to apply to the Circuit Court of Duval County for a writ of error coram nobis judgment to review the of con- petitioner viction of of the offense of Murder the First Degree heretofore entered in that Court, grounds stated petition, we have denied the petition for reasons as follows:
(a) This may judicial cognizance Court take of its own records and lodged the record in this Court on the writ of error to the judgment of conviction of petitioner shows ample evidence support judgment of conviction without the aid of testimony given on by the. trial the witness James Baker. error,
(b) Writ of coram nobis will not lie because of testimony given false by important at the trial witness. Lamb v. State, 91 396, 107 Fla. Sou. 535. (c) properly presentable Matters for writ of coram nobis are such as prevented would have conviction and not such may caused different have result. Chesser v. State, 92 754, 109 Fla. Sou. 906.
(d) If witness Baker falsely swore at trial, defendant’s that fact was known petitioner at the time of the trial. v. Washington Pike vs. State, 470; Fla. Sou. State, 103 594, 139 Fla. Sou. 196.
(e) allegations of the petition do not show that the prosecuting attorney any guilty knowledge had alleged witness, maltreatment of the alleged falsity of the testimony of witness Baker was known to the prosecuting officer.
(f) The petition any alleged does not show that mal- treatment of by any witness was inflicted officer of the trial court or that same was known officer trial court.
(g) The Court, records of this of which judicial we take cognizance, petitioner show that was convicted on trial held subsequent to the trial and of the witness con/iction the offense of Murder in degree the first without mercy, recommendation to both trials were con- ducted on behalf of each diligent defendant able, faithful counsel. If
(h) petitioner alleges all in his petition had been fully true and had been made known to the trial court jury and to the which tried the defendant-petitioner, precluded would not have the entry judgment upon guilty a verdict of of Murder degree the first having been returned the jury. it is, petition
So is insufficient require grant tous same and for such reasons same denied and the rehearing is likewise denied.
So ordered.
Terrell, J. Chapman, Thomas and J. J. Concur. Brown, C. J. Dissents.”