Mathews v. State

• Decision Date: 21 February 1950
• Parties: MATHEWS v. STATE.
• Court: Florida Supreme Court

Page 664

44 So.2d 664

MATHEWS v. STATE.

Supreme Court of Florida, Division B.

Feb. 21, 1950.

Wolfe, Wightman & Rowe, Clearwater, for appellant.

Richard W. Ervin, Attorney General and George M. Powell, Assistant Attorney General, for appellee.

SEBRING, Justice.

The defendant has appealed from a judgment of conviction of endeavoring to incite and procure a certain Sanders to commit perjury in a divorce suit to be instituted in the Circuit Court of Pinellas County, Florida, in violation of section 837.04 Florida Statutes 1941, F.S.A., which provides: 'Whoever endeavors to incite or procure any other person to commit perjury, though no perjury is committed, shall be punished by imprisonment in the state prison not exceeding five years or in the county jail not exceeding one year.'

The criminal information under which the conviction was obtained charged:

'That Arthur Guy Mathews * * * in the County of Nassau and State of New York, did endeavor to incite and procure another person, to-wit: Ernest Apgar Sanders, Jr. to commit perjury in the Circuit Court of Pinellas County, Florida, although no perjury was committed, by advising and counselling the said Ernest Apgar Sanders, Jr. to testify before one of the Circuit Judges of the Sixth Judicial Circuit of Florida in and for Pinellas County that he, the said Ernest Apgar Sanders, Jr., was a bona fide resident of the State of Florida and has been a resident of the State of Florida for ninety days prior to the filing by the said Ernest Apgar Sanders, Jr. of a suit for divorce in Pinellas County, Florida, against Corinne Sieck Sanders, the wife of Ernest Apgar Sanders, Jr., and in furtherance of the said advising and counselling by the said Arthur Guy Mathews aforesaid, the said Arthur Guy Mathews and Ernest Apgar Sanders, Jr., on the 22nd day of July, 1948, left the State of New York in an automobile belonging to Arthur Guy Mathews and drove to Clearwater, Florida, arriving in Clearwater, Florida on the 25th day of July, 1948, and the said Ernest Apgar Sanders, Jr., did on the 27th day of July, 1948, file in the Circuit Court of the Sixth Judicial Circuit of Florida in and for Pinellas County, a bill for divorce * * * in which Ernest Apgar Sanders, Jr. is plaintiff and Corinne Sieck Sanders is defendant, wherein the said Ernest Apgar Sanders, Jr. endeavored to secure a divorce from his wife, Corinne Sieck Sanders, it being alleged in said bill of complaint that the said Ernest Apgar Sanders, Jr. is an actual and bona fide resident of the County of Orange, State of Florida, and that he had resided in the State of Florida for more than ninety days last past; and the said Arthur Guy Mathews did then and there further endeavor to incite and procure the said Ernest Apgar Sanders, Jr. to commit perjury, although no perjury was committed, by advising and counselling the said Ernest Apgar Sanders, Jr. to falsely swear and testify before one of the Circuit Judges of Pinelas County, Florida, that he, the said Ernest Apgar Sanders, Jr. was a bona fide resident of the County of Orange and State of Florida and had been for more than ninety days prior to the filing of the bill of complaint on July 27th, 1948, the said testimony to be given by the said Ernest Apgar Sanders, Jr. before the Circuit Judge of Pinellas County, Florida, was to be false and untrue, and the false testimony the said Arthur Guy Mathews endeavored to incite and procure the said Ernest Apgar Sanders, Jr. to give before the Circuit Judge of Pinellas County, Florida, in said divorce hearing was and would be material to the issue to be heard, tried and determined by said Court, said Court having jurisdiction to hear, try and determine the issues in said cause, and the said Arthur Guy Mathews then and there well knew that the false testimony he endeavored to incite and procure of and from the said Ernest Apgar Sanders, Jr., was false and untrue, he the said Arthur Guy Mathews then and there well knowing that Ernest Apgar Sanders, Jr. was not a bona fide resident of the County of Orange and State of Florida but was in truth and in fact a resident of the County of Nassau, State of New York.'

The first contention of the appellant is that a motion to quash the information should have been granted on the ground that the information failed to show that the Circuit Court of Pinellas County, Florida, had jurisdiction to try and determine the criminal charge. The argument of the appellant, as stated in his brief, is, that though the information alleges, in all, 'four different dates and a chain of events, from July 9, 1948 in Nassau County, New York, until July 27, 1948, when a divorce action was filed in Pinellas County, Florida, by another person, after which the information charges that the defendant 'then and there incited and procured Ernest Apgar Sanders, Jr. to commit perjury although no perjury was committed'' it cannot be said 'that the information charges any offense to have been committed in Pinellas County, State of Florida, nor does it charge any definite date on which any alleged offense was committed in the State of Florida.'

Perhaps if the counselling and advising of Sanders to commit perjury in the Florida courts had been done in the State of New York, and had ended there, the contention of appellant might have been tenable. But what was done by Mathews, as disclosed by the information, was not confined to the State of New York, but was in the nature of a continuing offense. The plan to commit perjury in fraud of the State of Florida, its courts and its laws was first conceived and proposed by Mathews in New York, it is true, but it was not concluded there, for in furtherance of the fraudulent plan Mathews transported Sanders to Pinellas County where on July 27, 1948, the latter in an attempted consummation of the fraud, filed his bill of complaint, the allegations of which necessitated and plainly contemplated the very perjury in reference to the residence of the plaintiff in the suit, which the appellant, by his advice and counsel, had incited Sanders to commit. Under the circumstances disclosed by the allegations, we hold that the information was not subject to the motion to quash.

The second contention made by the appellant is that the trial court committed reversible error when during the course of the trial it allowed the prosecution to place in evidence a certain letter written by the appellant to the attorney cmployed by Sanders to institute the divorce suit in Pinellas County, and the attorney's answer thereto, over the objection of the appellant that the letters were privileged communications between attorney and client and hence were inadmissible as a matter of law.

There is no merit in this contention. Though it is the rule that communications between attorney and client are privileged the record makes it clear that no such relationship existed between the appellant and the attorney subsequently employed by Sanders to represent him in the divorce proceedings, at the time the letters were written. The rule, therefore, was not applicable under the facts of the case at bar. See Keir v. State, 152 Fla. 389, 11 So.2d 886; Code of Ethics Governing Attorneys, Rule b, Section 1, Par. 37, adopted by the Supreme Court of Florida, January 27, 1941; 70 C.J. 406, Witnesses, Sec. 547(b).

Another ground urged by the appellant for reversal of the judgment is with respect to several incidents transpiring during the course of the trial, which because they raise a single issue should be considered together.

During the course of the trial it was developed by the state attorney through direct examination of the prosecuting witness Sanders that after he, Sanders, had been duly subpoenaed by the State to appear as a material witness in the trial of Mathews, the latter's counsel had Sanders come to his office to talk with him about certain phases of the case to be tried. After this testimony was given at the trial by Sanders, in response to questions by the state attorney, the following colloquy took place between the presiding judge and the attorney for the appellant:

'Mr. Wightman: Your Honor, I ask that the Jury be instructed and that Mr. McMullen [the state attorney] be instructed that there is absolutely nothing wrong in my talking to any witness at any time, and if he is making any inference against me or my law work, I want it straightened out right here and now, your Honor, if you please, and I think I am entitled to an instruction.

'The Court: The jury is entitled to all the facts, and if those are facts, they are entitled to it.

'Mr. Wightman: Yes, I want the jury to know that, but I want the jury to know also that there is absolutely nothing wrong in any attorney in any case speaking to any witness in that case, or talking to him.

'The Court: Well, I am not going to tell the jury that it is wrong or that it is not wrong unless you insist on it, and if you insist on it--well, I just don't want to say, but if you want me to do so, I will.

'Mr. Wightman: I would like for you to say.

'The Court: I would say if you...