Miller v. State
Decision Date | 23 May 1900 |
Citation | 42 Fla. 266,28 So. 208 |
Court | Florida Supreme Court |
Parties | MILLER v. STATE. |
Error to circuit court, Calhoun county; John W. Malone, Judge.
Dallas D. Miller was convicted of embezzlement, and brings error. Reversed.
Syllabus by the Court
1. In dilatory pleas the greatest accuracy and precision in statement are required, and they must be certain to every intent, and free from ambiguity.
2. The statute (section 1355, Rev. St.) authorizing state attorneys to procure assistant counsel by and with the consent of the court, defines and limits their duties in going before grand juries to advice upon legal points and in framing indictments, and it does not contemplate that such assistants may remain with the grand jury while they deliberate and vote on bills, and then urge and request them to find a bill.
3. The presence of assistant counsel, procured with the consent of the court, before the grand jury, during the examination of evidence, and his mere presence at the time a vote is taken on a bill, would not be sufficient ground, in the absence of any abuse shown, to set aside the indictment; but when such counsel, after remaining in the grand-jury room during the examination of evidence and the deliberation of the jury in the case, including the time when the vote is taken, urges and requests the finding of the bill, the policy of the statute is violated, and the unbiased judgment of the jury on the merits of the case is invaded. This rule applies with even more force in case the counsel has not been procured with the consent of the court.
COUNSEL Liddon & Eagan and Butler & Floyd, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
Plaintiff in error was indicted for embezzlement at the fall term 1897, of the circuit court of Calhoun county, and was convicted on one of the counts in the indictment at the spring term of the court, 1899. Before pleading not guilty to the indictment, the defendant interposed pleas in substance as follows: That an attorney and counselor of the court (giving name), being the retained private counsel of one H B. Gaskin, in the indictment named, was before the grand jury and present with the grand jury which found the indictment during the examination of evidence and their deliberations in this case for the purpose of securing the indictment to which the plea is pleaded against the defendant, and, being so present before said indictment was found, he did at such time urge and request the grand jury to find such indictment; and also that an attorney and counselor of the court (giving name), being the retained private counsel of H. B. Gaskin, in the indictment named, was before the grand jury and present with such grand jury during the examination of evidence and their deliberations in the case for the purpose of securing the indictment to which this plea is pleaded against the defendant, and at the time of the taking of the vote on said bill of indictment, and, being so present before said indictment was found, he did at such time urge and request the grand jury to find such indictment; and during the times said attorney and counselor was so present with such grand jury another person named (being the duly-appointed state attorney for that circuit), who was then and there the state attorney for the Second judicial circuit of Florida, was not present, but the said attorney and counselor (alleged to be before the grand jury) was in the sole and exclusive charge and management of the case before the grand jury. Wherefore defendant prays whether he shall make any other or further plea to said indictment. The state demurred on the grounds that the plea was vague, indefinite and uncertain, and constituted no defense in law to the indictment, and the demurrer was sustained by the court.
As indicated by the record, the defendant filed two separate pleas, though it seems the state attorney regarded them as one pleading, and demurred to them as such. By demurring the state presented the question of the sufficiency of the pleas on the grounds stated, and obtained a decision against their legal sufficiency.
The pleas come under the head of what are known as 'dilatory pleas,' and as to them the settled rule is that the greatest accuracy and precision in pleading are required, and they must be certain to every intent, and free from uncertainty and ambiguity. Reeves v. State, 29 Fla. 527, 10 So. 901; Jenkins v. State, 35 Fla. 737, 18 So. 182.
The basis of objection to the indictment stated in the pleas is that an attorney and counselor of the court other than the duly-appointed state attorney improperly went before the grand jury when considering the indictment, and urged and requested them to find it. The indictment, as shown by the record, was signed by the duly-appointed state attorney, and there is nothing to show affirmatively that the attorney and counselor who went before the grand jury was appointed by the court, or was procured with the consent of the court, to assist the state attorney in any way.
By statute it is provided (section 1354, Rev. St.) that: His pay is provided for out of the state treasury. Section 1355 enacts that:
The indictment being signed by the duly-appointed state attorney we must assume that he was present and able to perform the duties of his office, and that the attorney and counselor who went before the grand jury was not appointed by the court as acting state attorney under section 1354. There is nothing in the record or statements of the pleas to exclude the view that he may have been procured by and with the consent of the court, under section 1355, to assist the state attorney; and under the strict construction in reference to such pleas we are authorized to assume, if necessary to sustain the action of the court, that he was so procured. Proceeding upon the view--as we are authorized to assume in the absence of clear allegations excluding it--that the counsel who went before the grand jury did so by procurement of the state attorney, by and with the consent of the court, the question...
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