Hall v. State

• Decision Date: 14 March 1939
• Court: Florida Supreme Court
• Parties: HALL v. STATE

187 So. 392

136 Fla. 644

HALL v. STATE

Florida Supreme Court

March 14, 1939

Error to Circuit Court, Sarasota County; W. T. Harrison, Judge.

Mae Hall was convicted for perjury, and she brings error.

Reversed and remanded.

BUFORD and CHAPMAN, JJ., dissenting.

COUNSEL

W. D. Bell, of Arcadia, for plaintiff in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for the State.

OPINION

BROWN Justice.

On February 2, 1933, three men were mysteriously murdered in Glades County, Florida. Lawrence Ford, alias Squash Ford Bill Taylor, alias Gus Harris, Parker Mansfield and Finis Williams, were indicted for the murder of these three men. In that trial Mae Hall, defendant in the case at bar, testified that on the day of the killing of these men, Squash Ford, one of the persons charged with their murder, came to her place at Arcadia, armed with 'a forty-five,' in company with Robert Mickler, and bought eight or ten sandwiches, putting them in a paper bag 'to take to the rest of the boys;' that Ford in her presence told her husband, Obie Hall, that he (meaning Squash Ford) could 'put anything on the spot with his forty-five;' that a few days before the killing, Ford stopped at her place and told her husband in her hearing that 'there was some cow-stealing sons of bitches was going to be sorry of going in the woods.' She further testified that a few days after the killing, she heard Ford tell her husband that he (Ford) was told to put them on the spot, and he surely could do it, and that there were three men killed and he helped kill them, and that he was not by himself, but that there were two other men with him. A mistrial resulted in the first case.

Later the case was transferred to Sarasota County, and when the defendant, Mae Hall, was placed on the stand she repudiated all of her testimony given in the first trial. Thereupon, an information in two counts was filed against Mae Hall, charging her with perjury. The State abandoned the second count. The amended information was filed by the Honorable L. Grady Burton, State Attorney of the Tenth Judicial Circuit, who had been assigned by executive order to act as State's Attorney in the Twelfth Circuit.

The case came on for trial, and the defendant filed a challenge to the array of jurors on the ground that no women were summoned on the jury; a motion to quash the information; a plea in abatement on the ground that State Attorney Burton had no authority to file the amended information, also alleging various other grounds, all of which were overruled by the Court. The defendant then announced by her counsel that she was ready for trial, and a trial was had. The jury convicted the defendant of perjury on the first count, and she was sentenced to life imprisonment, from which judgment and sentence she appeals to this Court by writ of error. While the sentence imposed is most unusual, it is within the limits fixed by the statute, section 7477, C.G.L.

The first question presented by plaintiff in error in her brief reads as follows: 'Is an information for perjury that does not show the materiality of the matter alleged to have been falsely sworn to sufficient to withstand a motion to quash?'

The amended information contained the following allegations: 'Whereupon, it then and there became and was a question material to the said issue, whether the said Lawrence E. Ford, alias Squash Ford, was guilty of the first degree murder of the said Donald Norton and to this material issue the said Mae Hall, being duly sworn as aforesaid to testify in the trial of the cause aforesaid * * * in the Circuit Court in and for Sarasota County, Florida, then and there on the 13th day of October, 1936, did wilfully, knowingly, feloniously, falsely and corruptly testify to and before the Court and jury then and there trying said cause matters and things material to the issue therein in substance and effect as follows: * * *' Then follows the material testimony which she is alleged to have testified falsely about. Then the information alleges: '* * * all of which testimony was material matter to the issue being tried respecting which her said oath was taken.'

The information, at the pleader's election, may either aver directly that the testimony falsely deposed was material to some issue on trial, or else allege facts from which its materiality will in law appear. Brown v. State, 47 Fla. 16, 36 So. 705; Tindall v. State, 99 Fla. 1132, 128 So. 494; Gibson v. State, 47 Fla. 34, 36 So. 706; Annotation in 80 A.L.R. 1443. We are of the opinion that, under this rule, the materiality of the false statements was sufficiently alleged.

The information was also attacked by motion to quash on the ground that it does not expressly and positively negative the truth of the alleged false statements. After the alleged false statements are set out, the information contains the following allegation: '* * * whereas in truth and in fact the said Mae Hall then and there well knew that * * *,' followed by a statement of what was alleged to be the actual facts. Thus the information expressly negatives the truth of each and every alleged false statement set out in the first part of the information. We hold that this is sufficient. The allegation that 'Mae Hall then and there well knew' neither changes nor lessens the force and effect of the averment. State v. Loos, 145 Iowa 170, 123 N.W. 962. See also Wharton's Crim.Law, 12th Ed., pp. 1815, 1830; Fudge v. State, 57 Fla. 7, 49 So. 128, 17 Ann.Cas. 919; Note in 17 Ann.Cas. 921. As it may be of some assistance in future cases of this nature, the first count of this information is set out in full in a note at the end of this opinion.

The plaintiff in error then contends that the part of the information setting out the false testimony groups a number of different assignments in the same paragraph, each of which is a negative pregnant. This contention is without merit. The information properly sets forth the false testimony as nearly as possible in the language of the accused. The matter alleged to be false and the matter alleged to be true are set out sufficiently and with such particularity as to inform the court and accused of the particular offense charged. 48 C.J., Perjury, Sec. 127, page 877. All of the several particulars, in which the accused swore falsely, may be embraced in one count. Wharton's Criminal Law, 12th Ed., Vol. 2, Secs. 1565, and 1567, pp. 1825 and 1826.

The information shows that it was sworn to by L. Grady Burton in the County of Hardee, which is in the Tenth Judicial Circuit; that it was filed on March 17, 1937, in the Circuit Court of Sarasota County, in the Twelfth Judicial Circuit; that thereafter it was again sworn to by Mr. Burton on March 22, 1937, before the Clerk of the Circuit Court of Sarasota County. The defendant contends that, because it wasn't sworn to at first in Sarasota County, it is void; also that when filed originally it had only been sworn to in a county outside the Twelfth Judicial Circuit.

The provision of the Constitution under which this information was filed is Section 10, Declaration of Rights, as amended, which provides: 'No person shall be tried for a capital crime unless on presentment or indictment by a grand jury, and no person shall be tried for other felony unless on presentment or indictment by a grand jury or upon information under oath filed by the prosecuting attorney of the court wherein the information is filed.' This information, being sworn to both in Hardee County and in Sarasota County and in each instance sworn to before a person qualified to administer an oath, in our opinion, meets the requirements of Section 10 of the Declaration of Rights. See Vann v. State, 131 Fla. 688, 179 So. 768; and Poole v. State, 129 Fla. 841, 177 So. 195, as being persuasive of the correctness of this holding.

Defendant contends that the executive order of the Governor did not give Mr. Burton any authority save to do and perform the matters and things necessary to be done and performed by the State Attorney in the trial of said cause: that the filing of an information was not included in nor contemplated by said executive order. The executive order, dated February 9, 1937 and filed in the Circuit Court for Sarasota County, on February 10, 1937, recited the disqualification of the resident State Attorney, and sent Mr. Burton to Sarasota, 'to officiate as State Attorney of the Twelfth Judicial Circuit of Florida, in and for Sarasota County, in the case of State of Florida versus Mae Hall, and to do and perform all matters and things necessary to be done and performed by the State Attorney of the Twelfth Judicial Circuit of Florida in the trial of said cause; * * * and he is hereby vested with all and singular the powers and prerogatives conferred by the Constitution and Laws of Florida upon State Attorneys officiating by order of the Governor.' Under this order Mr. Burton as assigned State Attorney, was authorized to do anything with reference to this case that the State Attorney of the Twelfth Circuit himself could have done if he had not been disqualified. Our holding is that the executive order was under the statute sufficient to authorize the assigned State Attorney to file this information against Mae Hall. The mere fact, if it was a fact, that the case of 'State of Florida versus Mae Hall' was not actually pending on an information already filed at the time the executive order was issued, does not invalidate the order or defeat its evident purpose. The record is silent on this point. The information sworn to and filed by Mr. Burton, and upon which the defendant was tried, was entitled 'Amended Information.' The briefs of plaintiff in error indicate that she was being 'held' on a charge...