Lawton v. State

Decision Date02 April 1943
Citation13 So.2d 211,152 Fla. 821
PartiesLAWTON v. STATE.
CourtFlorida Supreme Court

Rehearing Denied May 18, 1943.

Appeal from Criminal Court of Record, Orange County; W M. Murphy, judge.

G. B Fishback, W. R. Smith, and Fishback & Smith, all of Orlando, for appellant.

J. Tom Watson, Atty. Gen., Woodrow M. Melvin, Asst. Atty. Gen., and Clark W. Jennings, Sp. Pros. Atty., of Orlando, for appellee.

CHAPMAN, Justice.

The appellant Lawrence Lawton, was tried in the Criminal Court of Record of Orange County, Florida, on four counts of an information charging embezzlement. He was convicted by a jury on the third count and by the trial court sentenced to serve a period of two years in the State Prison, and has perfected an appeal therefrom to this Court.

The factual background of the controversy is, viz.: Anton Doyscher, in his early eighties, and his wife, Rosa Doyscher, in her late sixties, each of foreign birth, owned an orange grove in the vicinity of Orlando. The two owned the grove, but the legal title thereto rested in the wife, Rosa Doyscher. Lawrence Lawton was at the time a relator and operated an investment business at Orlando under the name of Lawton Investment Company, a Florida corporation. The appellant Lawton sold the grove for the Doyschers, charging the usual commission.

Considerable money was by the Doyschers placed with Lawton, or his company, for investment purposes. Interest on these investments for a while was paid by Lawton to the Doyschers. Some of the money was expended in the perfection and acquisition of a patent for a labor saving machine usable for the wrapping of oranges for shipment, while some of it was employed in the cost of drilling for oil in the State of Louisiana. Lawton testified that Anton Doyscher, shortly prior to his death, authorized these investments by Lawton and stated that the payment by Lawton to Rosa Doyscher annually of the interest on the entire amount left with him for investment would be satisfactory.

The money was squandered and Rosa Doyscher, then a widow, failed to receive interest on the investment in accordance with the agreement with Lawton. She retained counsel and fixed his compensation for services rendered at the sum of 25% of the amount recovered from Lawton, or the Lawton Investment Company. Suit by counsel was instituted in the Circuit Court of Orange County and a default judgment obtained on July 13 1942, against Lawton and the Lawton Investment Company, in favor of Rosa Doyscher, the widow, for the total sum of $23,740.37. The writ of execution issued on the judgment appears not to have been satisfied.

On March 18, 1942, Lawton was informed against for embezzlement by the County Solicitor of Orange County, Florida. The final judgment entered in the Circuit Court of Orange County against Lawton and his company involved the items alleged to have been embezzled. There is evidence in the record to the effect that the criminal suit was not to be tried pursuant to an agreement between Lawton and private counsel of Rosa Doyscher, provided Lawton would pay to counsel (for Rose Doyscher) within three days the sum of $1,000, provided a confession by appellant was filed in the record of the criminal case, but this contention is contradicted by some of the testimony.

On March 14, 1942, Lawton signed a written confession prepared by private counsel of Rosa Doyscher and left with her counsel. Appellant testified that he went to counsel's office, pursuant to a telephone call and signed the confession so prepared, with the understanding that he would be allowed five years in which to pay the debt. He was to pay $1,000 within three days; and the sum of $250 monthly thereafter; that it was his agreement with counsel that if he signed the contession there would be no criminal prosecution; that his wife and two sons would not be embarrassed or disgraced by a trial; the transaction would be closed by filing the confession; that the County Solicitor would not agree to continue the case without the confession. These statements were corroborated, in part, and contradicted, in part, by testimony. The appellant was arrested, contrary to the agreement with private counsel, and the case set for trial on a certain date by the Court all of which occurred to the surprise of appellant and contrary to his agreement.

The record discloses that private counsel was sworn as Assistant Prosecutor in the lower court, and as counsel participated in the trial, and during the progress of the trial, took the stand as a witness, gave testimony and was examined by the County Solicitor and cross examined by counsel for appellant. The brief filed by the State in this Court bears the signature of the Assistant Prosecutor, supra, and was by him orally argued at the bar of this Court.

The State, during the progress of the trial, offered in evidence, over the objection of counsel, a copy of the final judgment in the Circuit Court of Orange County in the case of Rosa Doyscher v. Lawrence Lawton and Lawton Investment Company, a corporation, involving the items or indebtedness as enumerated in the counts of the information charging embezzlement. This was error. The difference in degree of the burden of proof in civil and criminal cases renders the final judgment in the civil case inadmissible because the degree of proof in the civil case was by a preponderance of the evidence, while the degree of proof required in the criminal case was beyond a reasonable doubt. See Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917; State v. DuBose, Fla., 11 So.2d 477, opinion filed January 22, 1943; Sims v. State, 54 Fla. 100, 44 So. 737.

It is contended that the judgment should be reversed because of the alleged unprofessional conduct of private counsel appearing in the dual capacity of assistant counsel for the prosecution and as a witness for the State of Florida and against the appellant. Section 19 of the Canons of Professional Ethics is cited to sustain this view, which is viz. (text 125 Fla. 509):

"19. Appearance of Lawyer as Witness for His Client.--When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.'

See In re Canons of Professional Ethics, 125 Fla. 501.

We are unable to agree to this contention, but it is shown that the items involved in the civil suit are identical with the several items alleged to have been embezzled and counsel is shown to be financially interested to the extent of 25% of the amount recovered; having conferred frequently with the appellant, as disclosed by the record; having drafted and obtained the alleged confession on the part of the appellant, it may be advisable, when the case is again submitted, that the provisions of Section 19, supra, be observed by counsel by either not participating as assistant prosecuting attorney or as a State witness. Reversible error has not been made to appear in this connection.

It is next contended that the confession adduced in evidence over objection of counsel was unlawfully obtained. The record discloses that the trial court, in the absence of the jury heard testimony on the question of whether or not the alleged confession was voluntarily made, and thereafter admitted the same into evidence, Counsel for the State pose for adjudication the question: Is a confession made to a civilian when the confessor is not under arrest or in custody, an extrajudicial confession which cannot be received in evidence, unless it is first shown to have been made without any threat or hope or promise of reward? It is true that the appellant, as shown by the record, was not under arrest or in custody when the alleged confession was made at the time to a civilian, but is shown that the civilian later took the oath of Assistant County Solicitor of...

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  • 77 Hawai'i 51, State v. Bowe
    • United States
    • Hawaii Supreme Court
    • October 6, 1994
    ...10 Ariz.App. 169, 457 P.2d 356 (1969); People v. Haydel, 12 Cal.3d 190, 115 Cal.Rptr. 394, 524 P.2d 866 (1974); Lawton v. State, 152 Fla. 821, 13 So.2d 211 (1943); Commonwealth v. Mahnke, 368 Mass. 662, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976);......
  • Com. v. Mahnke
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 7, 1975
    ...10 Ariz.App. 169, 457 P.2d 356 (1969); People v. Haydel, 12 Cal.3d 190, 115 Cal.Rptr. 394, 524 P.2d 866 (1974); Lawton v. State, 152 Fla. 821, 13 So.2d 211 (1943). Underlying the above-cited decisions in this jurisdiction and other jurisdictions is the fundamental recognition that a stateme......
  • State v. Hess
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    • Arizona Court of Appeals
    • January 14, 1969
    ...nevertheless, be involuntary in case it was induced by promises that no complaint to the authorities would be made. Lawton v. State, 152 Fla. 821, 13 So.2d 211 (1943); Fisher v. State, 379 S.W.2d 900 (Tex.Cr.App.1964); State v. Ely, 237 Or. 329, 390 P.2d 348 (1964). However, the evidence is......
  • State v. Beck
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    • Florida District Court of Appeals
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    ...sir.' (emphasis supplied) This case is thus in sharp and decisive contrast with those cited by the defendant, e. g., Lawton v. State, 152 Fla. 821, 13 So.2d 211 (1943); Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977), cert. denied, 374 So.2d 101 (Fla.1979), in all of which the interrog......
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