Oglesby v. State
| Decision Date | 23 October 1945 |
| Citation | 156 Fla. 481,23 So.2d 558 |
| Parties | OGLESBY v. STATE. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Alachua County; John A. H Murphree, judge.
J. Harry Schad, of Gainesville, for appellant.
J. Tom Watson, Atty. Gen., and Reeves Bowen, Ass't Atty. Gen for appellee.
The sole question presented to us in this appeal is whether reversible error was committed in rulings of the court in respect to a certain utterance of the state attorney in the course of his argument to the jury.
It is reported that this official said: "law enforcement officers of this County would not have brought this Defendant into this Court on this charge if it were not for the fact that there were other matters of this kind that could be tacked on him." Objection was made and mistrial requested. The state attorney denied he made the comment 'as stated.' Following the motion containing the objectionable language we have quoted the judge observed that he 'was reading over the charge [he] intended to give to the jury at the moment the remark of the State Attorney * * * was made * * * therefore [did] not know of [his] own knowledge just what the State Attorney did say.' However, he denied the motion and admonished the jury 'that in determining the guilt or innocence of this Defendant, you will consider only the charge as stated against him in this information.'
It is the rule in this state that the trial judge shall halt improper remarks of counsel made during an address to the jury even though he is not requested to do so. However, a judgment will not be reversed because he failed in the duty unless timely objection was made. If, though, the comments are so prejudicial that 'neither rebuke nor retraction may entirely destroy their sinister influence * * * a new trial should be awarded, regardless of the want of objection or exception.' Carlile v. State, 129 Fla. 860, 176 So. 862, 864. It has also been decided that where the argument contains 'aspersions' or 'improper insinuations' the judge should sustain the objection as well as rebuke the offender in order to impress the jury with the impropriety of counsel's conduct. Deas v. State, 119 Fla. 839, 161 So. 729.
We shall not consume any time in discussing the application of the rule which the judge should apply in the absence of objection, for we believe protest in the trial of the instant case was seasonably made. The immediate concern is with the gravity of the innuendo.
From its very nature the remark was a calumny calculated to prejudice the jury in its duty to presume the defendant innocent and to weigh impartially the evidence to determine whether that presumption had been overcome. We do not say, as it is not necessary to say, that the language was of such damaging character as to have obligated the court of its own accord to recognize its sinister effect; nor do we decide that the remark was so palpably injurious that retraction or rebuke could not have destroyed its influence; but we do have the view that the mischief done the defendant's cause by the unfortunate and unwarranted remark of the state attorney in this case was not removed by the judge's mild instruction to the jury, which was in no sense a rebuke to the prosecutor for his uncalled-for abuse. The record is devoid of anything approaching a retraction. Without reference to the incident, the judge merely indulged in the generality that the jury should consider only the charge alleged in the information. This was not enough to overcome the evil effect of what the prosecutor had just hinted about other misdeeds of the kind (receiving stolen property) which could be fastened on the defendant.
This court has spoken quite definitely upon the subject of the obligation of state attorneys to assure defendants fair trials, and we have even classified them as semijudicial officers. Washington v. State, 86 Fla. 533, 98 So. 605. The conduct exhibited in this case...
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Williams v. State
...examination concerning counsel's questions or comments. Brown v. State, 678 So.2d 910, 913 (Fla. 4th DCA 1996). See Oglesby v. State, 156 Fla. 481, 23 So.2d 558, 559 (1945). The record in this case reveals that the court sua sponte objected to a comment and a question by defense counsel to ......
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Barnes v. State, 98-0299.
...in the exercise of professional judgment, conceded some matter during an appeal in order that justice be done. See Oglesby v. State, 156 Fla. 481, 23 So.2d 558 (1945) (state attorney has duty to assure defendant fair trial because state attorney is semi-judicial Turning to the original moti......
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DeLaine v. State
...v. State, Fla.1967, 194 So.2d 612; Gluck v. State, Fla.1953, 62 So.2d 71; Stewart v. State, Fla.1951, 51 So.2d 494; Oglesby v. State, 1945, 156 Fla. 481, 23 So.2d 558; Young v. State, 1940, 141 Fla. 529, 195 So. While the prosecuting officer should not indulge in abusive or inflammatory sta......
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Glassman v. State, 78-1340
...crime for which the defendant is on trial, when there is no evidence before the jury to support this assertion. Oglesbyv. State, 156 Fla. 481, 23 So.2d 558 (1945); Simmons v. State, 139 Fla. 645, 190 So. 756 (1939); Grady v. State, 129 Fla. 416, 176 So. 431 (1937); Akin v. State, 86 Fla. 56......