Gluck v. State
| Decision Date | 22 December 1952 |
| Citation | 62 So.2d 71 |
| Parties | GLUCK v. STATE. |
| Court | Florida Supreme Court |
Albert D. Hubbard and Henry R. Carr, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen., for appellee.
The appellant was charged with rape and convicted of the offense of assault with intent to commit rape.
In his opening statement to the jury the Assistant State Attorney stated to them, 'We will also present evidence of a former similar act' and referred to the appellant as 'a man that had never been employed in five years.' At the conclusion of the statement by the Assistant State Attorney, the appellant objected to such statements, called them to the court's attention and made a motion for a mistrial, which was denied.
There was no question about the defendant's identity, that he knew the woman and that he had had sexual intercourse with her at the time and place mentioned. The defense was that the act was with her consent. During the course of the trial the State, over the objection of the appellant, introduced evidence by a woman of an alleged offense committed some 3 or 4 years prior to the alleged act for which appellant was being prosecuted. She related all of the alleged details of the offense to the same extent as if the appellant was being tried for that offense.
In the course of the trial the Assistant State Attorney referred to the fact that the mother and wife of the appellant was 'sticking to him' and stated:
Near the conclusion of his address to the jury the Assistant State Attorney hurled epithets at the accused so foul, vile, abusive and obscene as to be unquotable in this opinion.
The following took place after the epithets were used:
'Mr. Carr: We would like the Court to caution and admonish the State's Attorney that such conduct is highly irregular * * * that type of language.
'Mr. Mincer: That seems to be the facts in this case.
'The Court: It will be denied.'
The above quotation of what took place, not only shows a determination on the part of the Assistant State Attorney to have his highly prejudicial remarks remain imbedded in the minds of the jury, but also, that the Court approved such remarks.
In the case of Simmons v. State, 139 Fla. 645, 190 So. 756, 758, this Court used the following language:
'It is well settled that statements or intimations by the prosecuting attorney that accused has committed other crimes besides that for which he is now on trial constitutes error.'
In the case of Huggins v. State, 129 Fla. 329, 176 So. 154, 155, error was alleged on the ground that the State Attorney in his argument to the jury repeatedly referred to the defendants as Negroes and made many remarks derogatory to the Negro race and highly prejudicial. The transcript of the record did not show that such remarks were made by the State Attorney. However, this Court said:
'If the transcript of the record showed by the authenticated bill of exceptions that the state's attorney indulged in the argument attributed to him in this ground of the motion a new trial would be awarded.'
In the case of Stewart v. State, Fla., 51 So.2d 494, in an opinion by Mr. Justice Terrell, this Court said:
'We have not only held that it is the duty of counsel to refrain from inflammatory and abusive argument but that it is the duty of the trial court on his own motion to restrain and rebuke counsel from indulging in such argument.'
The appellant was presumed to be innocent until he was found guilty as a result of a fair and impartial trial. He was charged with a particular crime and that alone. Neither his religion, character, alleged prior offense, nor occupation were proper issues in the case. The conduct, attitude and remarks, which were seasonably called to the attention of the Court and objected to, were highly prejudicial and even if not calculated to, undoubtedly had an influence upon the jury in the rendition of their verdict. State Attorneys and their assistants are quasi judicial officers of the court. It is their duty to see that a defendant gets a fair and impartial trial. When such matters, as herein set forth, are called to its attention, it is the duty of the Court to reprimand the prosecuting officer, sustain the objections and, if possible, make it clear to the jury that the Court does not condone the conduct of the prosecuting officer, and eradicate the same from the minds of the jury. If that cannot be done, a new trial, or a mistrial, should be granted. See Deas v. State, 119 Fla. 839, 161 So. 729.
The record in this case discloses that the appellant did not receive a fair and impartial trial.
Reversed, with directions to set aside the judgment, sentence and order denying a new trial, and to grant the motion for a new trial.
I concur in the opinion of Mr. Justice MATHEWS. I have no more patience with the behavior pattern of appellant than was evidenced by the Assistant State Attorney, but when one is on trial for crime, assaults on his character, occupation and religion, including attempts to introduce evidence of other offenses, are not only in bad taste, they are out of place and repugnant to fair and impartial trial as guaranteed by the Bill of Rights. First ten Amendments to Federal Constitution.
The Bill of Rights proceeds on the theory that civil and political rights inhere in the people, who cannot be deprived of them without due process. It not only guarantees one a speedy trial by an impartial jury, it guarantees freedom of worship, freedom of speech and press, freedom of conscience, freedom of assembly and the right to bear arms; it protects one against unreasonable search and seizure of his house, papers and effects, and provides that he shall not be deprived of life, liberty or property without due process of law. It protects him against excessive bail, cruel and unusual punishment and shields his property from public use without just compensation. It protects the right to contract and safeguards other fundamental concepts that flow from those enumerated or are implicit in them. The 13th, 14th and 15th amendments, sometimes known as the Civil Rights Amendments, added to and duplicate some of those defined in the original document.
The Bill of Rights became a part of the Federal Constitution December 15, 1791, but it had been made a part of the fundamental law of Virginia June 12, 1776, and was...
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