Bazarte v. State

• Decision Date: 30 December 1959
• Docket Number: No. 949,949
• Parties: Peter BAZARTE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 227

117 So.2d 227

Peter BAZARTE, Appellant, v. STATE of Florida, Appellee.

No. 949.

District Court of Appeal of Florida, Second District.

Dec. 30, 1959.

Rehearing Denied Jan. 25, 1960.

James A. Weck, Pompano Beach, for appellant, Peter Bazarte.

Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.

FUSSELL, CARROLL, Associate Judge.

Peter Bazarte appeals from a conviction of perjury alleged to have been committed when he testified falsely as a witness in a preliminary hearing against Robert and Kenneth Hemmerle being held by the Judge of the Criminal Court of Record of Broward County. One of the points argued most strenuously by the appellant as a ground for reversal is that there was no judicial proceeding, since the Judge of the Criminal Court of Record had no authority to conduct this particular preliminary hearing. Appellant maintains that the County Solicitor stipulated in the record, before the beginning of the trial, that the State would proceed under Florida Statutes Sec. 837.02, F.S.A., which provides:

'837.02 Perjury in judicial proceeding; punishment.

'Whoever being lawfully required to depose the truth in any proceeding in a court of justice, commits perjury, * * *.' (Emphasis supplied.)

Appellant then argues that the preliminary hearing in which this defendant testified as a witness was and could not be a judicial proceeding for the reason that the judge who presided at the preliminary hearing was empowered to try the charge being investigated and therefore was disqualified to conduct this preliminary hearing under the provisions of Florida Statutes Sec. 902.01, F.S.A., which provides:

'902.01 Duty of magistrate.

'When a defendant is brought before the magistrate upon an arrest, either with or without a warrant, on a charge of having committed an offense, which the magistrate is not empowered to try and determine, the magistrate shall immediately inform him: * * *.' (Emphasis supplied.)

Relative to this matter the Supreme Court of Florida in Davis v. State, 65 So.2d 307, 308, said:

'The magistrate conducting the preliminary hearing must be an officer not empowered to try and determine the offense. Section 902.01, F.S.A.' (Emphasis supplied.)

In reply to this argument the Attorney General in his brief says:

'There is no showing that the magistrate who conducted the preliminary hearing was an individual with power to try and determine the case which was then before him, and there is no showing in the record as to what court the defendants, Robert and Kenneth Hemmerle, were eventually bound over to. In fact the testimony concerning the preliminary hearing gives no concrete proof as to what the charges were then pending against the Hemmerles.'

A careful search of the record indicates that the above statement of the Attorney General is correct, as we have likewise geen unable to find any testimony in the record indicating what charge had been made against Robert and Kenneth Hemmerle and which constituted the subject matter under consideration and investigation by the court in this preliminary hearing.

We, therefore, hold that since the record does not show what charge was being investigated in the preliminary hearing, there is no possible way for us to determine that the judge at the preliminary hearing was or was not empowered to try the charge being investigated. This finding, however, presents a most serious failure in the State's proof of the crime of perjury.

Justice Thornal, in the case of Gordon v. State of Florida, Fla., 104 So.2d 524, 530, in discussing the definition and elements of perjury, says:

'The crime of perjury committed in a judicial proceeding is condemned by Section 837.02, Florida Statutes, F.S.A. * * *. The crimes are not clearly defined by the Statutes. We, therefore, look to cases and the common law for definitions. In Wharton's Criminal Law & Procedure, Vol. 3, Sec. 1290, we find the following:

'At common law perjury was (1) the willful (2) giving of false testimony (3) on a material point (4) in a judicial proceeding, (5) by a person to whom a lawful oath had been administered.'

'See also Clark and Marshall, Crimes, 5th ed., p. 641, Sec. 446(a).

'The foregoing are the basic essentials in Florida. Miller v. State, 15 Fla. 577.'

It will be noted as to number (3) of this definition that the false testimony must be on a material point.

This priciple has been repeatedly and consistently announced and adhered to by the Florida courts: Miller v. State, 15 Fla. 577; Robinson v. State, 18 Fla. 898; Brown v. State, 47 Fla. 16, 36 So. 705; Yarbrough v. State, 79 Fla. 256; 83 So. 873; Bolen v. State, 103 Fla. 22, 137 So. 8; D'Alessandro v. State, 116 Fla. 749, 156 So. 702; Rivers v. State, 121 Fla. 887, 164 So. 544; Keir v. State, 152 Fla. 389, 11 So.2d 886; Rader v. State, Fla., 52 So.2d 105; Smith v. State, Fla., 92 So.2d 411.

This requirement that the false testimony must be as to a material matter to constitute perjury appears in so many words in the Statutes itself relative to perjury committed in non-judicial proceedings:

'837.01--Perjury otherwise than in judicial proceedings.

'Whover being duly authorized or required by law to take oath or affirmation, not in a judicial proceeding, lawfully swears or affirms falsely in regard to any material matter or thing, respecting which such oath or affirmation is authorized or required, shall be deemed guilty of perjury. * * *.' (Emphasis supplied.)

It is true that a form of information charging perjury is set out in Section 923.03, Florida Statutes, F.S.A., as follows:

'923.03 * * *

'(e) As to perjury:

'In the hearing of a cause in the ........ court of ........ County, Florida, in which ........ and others were plaintiffs and ........ others were defendants, after being duly sworn to speak the truth, falsely swore, etc. (stating the substance of the false testimony) such matter being material in said cause, and the said ........ then and there knowing that he swore falsely.' (Emphasis supplied.)

This form of information has been upheld by this court in State v. Fabian, 97 So.2d 178, 181, in which Judge Allen, after reviewing the law in regard thereto, said:

'We are of the opinion that the information conformed in substance with the statutory form and was therefore sufficient.'

It will be noted that the allegation as to materiality is definitely in the statutory information which has been upheld by the court, but the effect of this is merely to provide that this essential element may be alleged in this succinct manner...