Gordon v. State

Decision Date25 July 1958
Citation104 So.2d 524
PartiesH. P. GORDON, Harry E. King, James L. Busbee and Rollie Arnold, Appellants, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Martin & Martin, Plant City, and Bentley, Shafer & Miller, Lakeland, for H. P. Gordon. James L. Busbee, Rollie Arnold and Sentell Monk; Chester Bedell, Jacksonville, and L. Grady Burton, Wauchula, for Harry E. King.

Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.

THORNAL, Justice.

Appellants Gordon and King seek reversal of a judgment of conviction entered pursuant to a jury verdict finding them guilty of the crime of subornation of perjury. Appellants Busbee and Arnold seek reversal of a judgment of conviction entered pursuant to a jury verdict finding them guilty of the crime of perjury.

A total of seventy-nine alleged errors have been assigned by the four appellants. Those which require attention are discussed. The others are not such as to require detailed comment.

During the times herein mentioned appellant King was the State Senator from Polk County. He had been designated president of the Senate but had to stand for re-election in the primaries and general election of 1956. In the latter part of 1955 King suspected that opposition was brewing for the 1956 Spring Primary. One of the rumored opponents was State Representative Boone D. Tillett. In late October or early November, 1955, King approached Tillet in what appears to have been an effort to discourage the latter from entering the Senate race. This initial conference set in motion one of the most bizarre transactions that has come to light in the history of Florida politics.

After several conferences back and forth it was finally agreed between the two that King would pay Tillett the sum of ten thousand dollars to keep the latter out of the Senate race. At the outset it appeared to be Tillett's notion that he would not reveal the scheme until after the 1956 Spring primaries. He apparently lost control of the situation when he reported the affair to the State Attorney in Tallahassee, as we shall see. The ultimate arrangement was that in exchange for the ten thousand dollars Tillett would deliver to King certain photographs and affidavits that King felt would have been damaging to him politically. In addition it was agreed that Tillett would sign a statement announcing that he would not enter the Senate race. They finally agreed to exchange documents for money in the vicinity of King's citrus grove, eight miles out of Babson Park in Polk County, on the night of February 4, 1956. They there burned the photographs and affidavits. A part of the plan was that Tillett would go to Tallahassee and advise a representative of the Associated Press that he was not entering the Senate race and that a letter would be forthcoming to that effect. Tillett did go to Tallahassee but merely advised Mr. Harold Parr of the Associated Press that he, Parr, would receive a certain letter. Tillett added the request that instead of opening the letter, the newspaperman should deliver it unopened to Honorable William D. Hopkins, State Attorney for the Second Judicial Circuit. Tillett also communicated with Mr. Hopkins and Honorable Reeves Bowen, who for many years has been the head of the Criminal Division of the Attorney General's office. Tillett apparently advised them of the whole plot.

According to the understanding, King mailed the Tillett withdrawal letter from Tampa. As we shall see, although King was ignorant of the fact, Tillett had arranged to have his name signed to this letter by one of his friends. When the letter was received by the Associated Press representative it was opened and the contents published. It was then turned over to State Attorney Hopkins by Mr. Parr. This exploded the whole scheme and produced public statements back and forth by King and Tillett. It also produced something else-a grand jury investigation of the whole affair. We glean from this record that the investigation was at least suggested in a request by Tillett to the State Attorney for the Tenth Judicial Circuit which includes Polk County.

Before the grand jury convened to consider the matter the Governor assigned Mr. Hopkins, as State Attorney, to go to the Tenth Circuit and investigate the affair. This Mr. Hopkins did. Called to testify before him were many witnesses including appellants Gordon, Busbee and Arnold. Gordon was sheriff of Polk County. Busbee and Arnold were two of his deputies.

The statements under oath before Mr. Hopkins, as State Attorney, revealed that Gordon had been involved in numerous conversations regarding the affair with both King and Tillett during the period of negotiations leading up to the alleged 'pay-off' on February 4, 1956. He could hardly be classed as an 'intermediary.' However, he appeared to be a mutual political ally of both principals. He willingly exposed himself to conversations with both parties. Shortly prior to the fatal date, the sheriff had assigned Busbee and Arnold to 'co-operate' or 'work' with Senator King. Busbee told the State Attorney that he was secreted in the King grove at the time of the 'pay-off' and saw some papers passed from Tillett to King while the two were seated in an automobile. mobile. He said he then saw the two men get out of the automobile and burn something in front of the car. Arnold stated that he was present in the grove with Busbee, that he saw 'two men' in the car and also witnessed the burning of something. He did not identify the men or witness the passing of the papers.

After the matter was investigated by State Attorney Hopkins, he presented the whole thing to the grand jury which was empaneled on March 13, 1956. On March 14, 1956, Busbee and Arnold testified before the grand jury pursuant to summons. From the grand jury witness stand Busbee and Arnold reaffirmed under oath the truth of their prior statements to Hopkins regarding their presence at the scene of the 'pay-off' on February 4, 1956, as well as the things which they then saw, all of which are summarized above. On March 16, 1956, the grand jury indicted Busbee and Arnold for the crime of perjury. On March 20, 1956, the grand jury indicted King for alleged violations of the State Election Code, F.S.A. § 97.011 et seq. It should be noted that six days elapsed between the time Busbee and Arnold testified and the subsequent indictment of King.

Honorable Clifton Kelly, County Solicitor of Polk County, with understandable propriety asked to be excused from prosecuting this matter because his brother was also a candidate for the State Senate in the approaching primary. The Governor appointed Honorable Paul B. Johnson, County Solicitor of neighboring Hillsborough County, to serve in the stead of Mr. Kelly. On April 13, 1956, the acting County Solicitor filed a six-count information against the four appellants and one Sentell Monk, a county jailor, who as it seems allegedly had altered certain jail records to make it appear that Busbee and Arnold could have been at the pay-off scene at the time they swore they were there. Allegedly the unaltered jail records would have shown that at the time of the alleged 'pay-off the deputies were apprehending prisoners and placing them in jail. Certain State witnesses testified that this was actually a fact. Others stated that in their opinions the jail records had been altered. For reasons hereafter mentioned, Monk is not a party to the appeal in this court.

The sum of the information on which the defendants were tried and convicted is as follows:

Count 1: Gordon, King, Busbee, Arnold and Monk were charged with conspiracy to have Busbee swear falsely before the grand jury.

Count 2: Gordon, King, Busbee, Arnold and Monk were charged with conspiracy to have Arnold swear falsely before the grand jury.

We here interpolate that at the time of the alleged offense conspiracy to commit and offense was a misdemeanor. Section 833.01, Florida Statutes 1955, F.S.A. Appeals from misdemeanor convictions are heard by the circuit courts. The convictions under the first two counts for conspiracy are therefore not before us. Hence, the defendant Monk is not a party to this appeal. Similarly, we do not here pass on the conspiracy convictions of the four appellants. We proceed to epitomize the other four counts of the information.

Count 3: Gordon and King were charged with subornation of the alleged perjury of Busbee.

Count 4: Gordon and King were charged with subornation of the alleged perjury of Arnold.

Count 5: Busbee was charged with perjury before the grand jury while that body was investigating alleged violations of the Election Code.

Count 6: Arnold was charged with perjury before the grand jury while that body was investigating alleged violations of the Election Code.

After a trial that lasted for three weeks Gordon and King were found guilty under Counts 3 and 4; Busbee and Arnold were found guilty under Counts 5 and 6, respectively. As mentioned above, they were also convicted under Counts 1 and 2 but these convictions are not before us. Motions for new trials were denied. Judgments of conviction and sentences to terms in the state prison were entered and prescribed. Reversal of these judgments is now sought.

It should be kept in mind that these appellants were being prosecuted on charges of perjury and subornation thereof. We are not here dealing with violations of the election laws or breaches of rules of political morals. A studious examination of this record produces the inescapable conclusion that unfortunately throughout the trial resentment against alleged political misprisions and politically offensive conduct was permitted to permeate the proceeding. While this is quite understandable in the light of the political atmosphere that prevailed at the time, nevertheless, the rights of these appellants who were on trial for two of the noxious charges in the Criminal Code cannot be measured by...

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