97 So.2d 105 (Fla. 1957), State v. Diez

Citation97 So.2d 105
Party NameSTATE of Florida, Appellant, v. Frank DIEZ, Appellee (two cases).
Case DateSeptember 18, 1957
CourtSupreme Court of Florida

Page 105

97 So.2d 105 (Fla. 1957)

STATE of Florida, Appellant,


Frank DIEZ, Appellee (two cases).

Supreme Court of Florida.

September 18, 1957

Rehearing Denied Oct. 17, 1957.

Richard W. Ervin, Atty. Gen., Jos. P. Manners and Richard J. Brooks, Asst. Attys. Gen., for appellant.

William C. Pierce and Manuel M. Garcia, Tampa, for appellee.

THOMAS, Justice.

Two informations were filed in the Criminal Court of Record of Hillsborough County charging Frank Diez with perjury.

Page 106

In one it was alleged that the defendant being 'required by law to take an oath in a non-judicial proceeding and * * * being under oath then and there * * * administered to him by one Ralph Fernandez who was duly authorized to take acknowledgment of instruments for public record * * *, did wilfully, knowingly, intentionally, corruptly and falsely swear * * * 'I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party,'' but to the contrary the defendant had 'lent his aid, support, advice, counsel or influence to the Communist Party * * *.' It was averred that the statement was material because the oath containing it was a prerequisite to the employment of the defendant by the Florida State Racing Commission, and that the defendant knew the statement was false when he made it.

The second information is identical with the first except that the statement set out was alleged to have been made about a year later.

The defendant moved to quash both informations on twenty-three grounds and his motions were granted. The state then appealed so the defendant is now appellee.

Under one ground it was argued by appellee, apparently with success, that by federal law the field of sedition legislation had been preempted by the federal government and, therefore, the statutes relied on were no longer valid. Secs. 876.05 through 876.10, Florida Statutes u953, and F.S.A

We have commented that the appellee argued this particular point with apparent success because the orders entered by the judge simply granted the motions to quash without specifying what grounds of the twenty-three presented by the movant were considered to have been well taken. However, this point is argued here both by appellant and appellee so we consider that it is one which we should properly decide.

The Attorney General contends that a loyalty oath such as appellee was required to take does not fall in the same category as sedition, one being a matter of allegiance to the government, the other a matter of commission of the crime of treason, or sedition.

We are immediately concerned with the first of the statutes, Sec. 876.05, supra, which provides, in brief, that all persons in the service of the state, as well as all candidates for public office, shall subscribe to a certain oath, the contents of which relevant to this controversy are: That the affiant is not 'a member of the Communist Party,' and '[has] not and will not lend * * * aid, support, advice, counsel or influence to the Communist Party * * *.'

In the last of the cited statutes, Sec. 876.10, supra, it is provided that a person 'guilty' of making a false statement in the oath shall be 'guilty' of perjury. This is the statute upon which the present prosecutions are based. Sec. 837.01, Florida Statutes 1953, and F.S.A.

The appellee asserts that it is only with the part of the oath: 'I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party' that this court need now be concerned, and he contends that aside from the unconstitutionality of the particular statute, the legislature never intended that it should have a retroactive effect. Also, he represents that the state concedes these to be the only questions to be resolved by this court and he takes the position that an affirmative answer to either must result in an affirmance.

As we understand the record, the ruling constituted a decision that Sec. 876.05, supra, was unconstitutional. We proceed to an examination of the briefs of the Attorney General and the appellee dealing with (1) the preemption of the field by the federal government, (2) the intention of the legislature with reference to the retrospective effect of the act, and (3) the invalidity of the law because of the absence of any requirement of a statement in

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the oath that the affiant consciously gave aid, support, advice, counsel or influence to the Communist Party.

Appellee argues that by federal law the government of the United States has nullified 'sedition legislation by the States, including the instant Act,' to quote from appellee's brief. Chapter 25046, Laws of Florida, Acts of 1949, F.S.A. § 876.05 et seq.

At the outset the appellee draws the attention of this court to three federal laws having to do with the general subjects of sedition and communism. One of these is the so-called Smith Act originally passed in 1940 and amended in 1948, 18 U.S.C.A. § 2385. Under this law anyone who abets the overthrow of the government of the United States or any state by violence may be fined $10,000 or imprisoned for not more than 10 years, or both, and shall be ineligible for employment by the United States for five years following his conviction.

In 1950 the Internal Security Act was passed, 50 U.S.C.A. § 781 et seq. It carried a preface about the world-wide communist movement calculated to accomplish, by treachery and infiltration into government and other groups, a communist totalitarian dictatorship. This is a comprehensive law designed to curb the insidious communistic canker.

In 1954 the Congress enacted the Communist Control Act, 50 U.S.C.A. § 841 et seq. In it the Congress declared that although the Communist Party was ostensibly a political party, it was in truth and instrumentality designed to work the overthrow of the United States Government and to deny the liberties guaranteed by the Constitution and that the Communist Party should be outlawed.

Two state laws have been passed dealing with the general subject of communism and one with loyalty to the government as a qualification for employment by the state. The earliest of these was Chapter 20216, Laws of Florida, Acts of 1941, F.S.A. § 876.01 et seq., outlawing in the State of Florida the Communist Party, the Bund, and all groups, organizations or individuals seeking to overthrow the government of the United States by force. Such was the title, and in the body of the act there is reference to the assassination of officials of the state as well as the federal government. In this act criminal anarchy, criminal communism, criminal nazi-ism and criminal fascism were denounced.

Then followed the enactment of Chapter 25046, supra, one section of which, now 876.05, supra, we are now considering.

Afterward the legislature passed Chapter 28221, Laws of Florida, Acts of 1953, F.S.A. § 876.22 et seq., condemning communism and its kind and all their works. Incidentally, it was provided in this act, that it should be felonious 'knowingly and willfully' to engage in subversive activities. The significance of the language we quote will become apparent when we presently discuss the averments of the...

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