Oglesby v. State
| Decision Date | 30 January 1922 |
| Parties | OGLESBY v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied Feb. 27, 1922.
Error to Circuit Court, Seminole County; C. L. Wilson, Judge.
James M. Oglesby was convicted of manslaughter, and he brings error.
Affirmed.
Syllabus by the Court
Pleas in abatement must be certain to a certain intent in every particular. Pleas in abatement must be certain to a certain intent in every particular. They must leave nothing to be supplied by intendment, and no supposable special answer unobviated.
Only grounds of challenge to grand jurors are those provided by statute. The only grounds of challenge to the favor applicable to grand jurors in this state are those provided for by section 5954, Revised General Statutes.
Public prosecution must never be under the entire control of private parties, but members of the bar may assist, though retained by private persons. A public prosecution for a criminal offense must be conducted by the proper official representative of the state, and must not under any circumstances be placed under the entire management and control of private parties or their attorneys. It is proper however, for the state attorney, when there is no express statutory prohibition, to obtain, with the consent of the court, the assistance of other counsel; and other members of the bar are not incompetent to be engaged for such assistance, and taking part in the trial, by reason of being retained and paid by private persons.
State attorney should always be present where private counsel are assisting. When such assistants to the state attorney are employed in a case, the state attorney should always remain present at the trial, and see that a public prosecution does not degenerate into a private prosecution, and that the administration of the criminal law is not made a vehicle of oppression, for the gratification of private malice, or the accomplishment of private gain or advantage.
Plea in abatement for prejudice of grand juror must show that he participated in finding indictment. Where a plea in abatement avers that a member of the grand jury was a son-in-law of 'a prosecutor' in the case, the plea is defective if it does not aver that the said grand juror participated in finding the indictment in the case.
Where indictment signed by acting state attorney employed by private persons is quashed, the same grand jury, under state attorney, may again indict the accused. Where an indictment signed by an acting state attorney is quashed because the acting state attorney was employed by private persons in the case, it is competent for the same grand jury, with the assistance of a competent acting state attorney to again indict the accused by due procedure.
Landis, Fish & Hull, of De Land, for plaintiff in error.
Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.
Upon an indictment charging murder in the first degree, the defendant was convicted of manslaughter, and took writ of error.
It appears that the defendant was first indicted for manslaughter, that a subsequent grand jury indicted him for murder in the first degree, which indictment was quashed, and that the present indictment, signed by a competent state attorney, was then found by the same grand jury.
The first indictment for murder in the first degree was by the court 'of its own motion quashed and set aside,' on the ground that the acting state attorney who signed the indictment had 'been heretofore employed by private persons to aid the said state of Florida in the prosecution of James M. Oglesby, was thereby disqualified to act as acting state attorney in said cause.'
A plea in abatement to the last indictment for murder in the first degree, which plea was demurred to, avers in effect that a member of the grand jury was a son-in-law of the decedent and was 'a prosecutor' of the defendant, and also that a privately employed counsel participated with the grand jury when the former indictment for murder in the first degree was found by the same grand jury, and that there was then present no qualified state attorney acting in the case. There are other averments that need not be stated here.
Pleas in abatement must be certain to a certain intent in every particular. They must leave nothing to be supplied by intendment, and no supposable special answer unobviated. Taylor v. State, 49 Fla. 69, 38 So. 380; Cannon v. State, 62 Fla. 20, 57 So. 240.
The only grounds of challenge to the favor applicable to grand jurors in this state are those provided for by section 5954, Revised General Statutes. Peeples v. State, 46 Fla. 101, text 102, 35 So. 223, 4 Ann. Cas. 870.
A public prosecution for a criminal offense must be conducted by the proper official representative of the state, and must not under any circumstances be placed under the entire management and control of private parties or their attorneys. It is proper, however, for the state attorney, when there is no express statutory prohibition, to obtain, with the consent of the court, the assistance of other counsel; and other members of the bar are not incompetent to be engaged for such assistance, and taking part in the trial, by reason of being retained and paid by private persons. When such assistants are employed in the case, the state attorney should always remain present at the trial, and see that a public prosecution does not degenerate into a private prosecution, and that the administration of the criminal law is not made a vehicle of oppression for the gratification of private malice, or the accomplishment of private gain or advantage. Thalheim v. State, 38 Fla. 169, 20 So. 938. See, also, Miller v. State, 42 Fla. 266, 28 So. 208.
Section 5954, Revised General Statutes, 1920, which was section 2810 of Revised Statutes of 1892, is as follows:
'Any person held to answer to any criminal charge may object to the competency of any one summoned to serve as a grand juror before he is sworn, on the ground that he is a prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution and has been subpoenaed or been bound in a recognizance as such, and if such objection be established, the person summoned shall be set aside.'
If, on the averments of the plea in abatement, the son-in-law of the decedent, who was a member of the grand jury, may be regarded as 'a prosecutor,' within the meaning of the above-quoted statute, it is not averred that such grand juror participated in finding the indictment, or in the proceedings incident thereto, and the plea in this respect is not certain in every particular, and leaves a 'supposable special answer unobviated,' being thereby insufficient. In Kitrol v. State the grand juror was disqualified to act in any case, being excluded by statute. 9 Fla. 9.
It does not appear by the plea that after the first indictment charging murder in the first degree was quashed, and after a competent acting state attorney was appointed by the court, the grand jury did not again consider the case under proper circumstances and duly find the second indictment for murder in the first degree, that was signed by a competent acting state attorney, who approved it, if he did not draft it in his official capacity. Nor does it appear with certainty that any conduct of the grand jury or any circumstances affecting their qualifications to act in the case transpired at any time to render them incompetent to find the indictment, or that there was any irregularity or improper conduct or procedure affecting the integrity of the last indictment found. Other subsidiary averments of the plea need not be discussed.
Privately employed counsel should not take part in the prosecution of a criminal case, except as is proper when done under the control of a qualified state attorney, or acting state attorney, or other proper officer of the state. Under no circumstances should privately employed counsel act as the representative of the state in any official capacity, except that of an officer of the court, as distinguished from an officer of the state. See Miller v. State, 42 Fla. 266, 28 So. 208; Robinson v. State, 69 Fla. 521, 68 So. 649.
The evidence is ample to sustain the verdict, and enen if there was error in excluding evidence to impeach a state witness, there is other evidence as to the same elements of the offense that is legally sufficient to support the verdict and sentence for manslaughter.
Affirmed.
A grand jury at the January term of the circuit court for Seminole county investigated a homicide committed by James M. Oglesby, and after hearing the testimony of the witnesses and being assisted and advised by the regular state attorney found an indictment against Oglesby for manslaughter.
On May 24, 1921, at the next term of the circuit court for Seminole county, it was state attorney in that case. Mr. Thetford that Mr. George A. De Cottes, acting state attorney, had been specially employed to assist the state in the prosecution of the case of the state of...
To continue reading
Request your trial
-
Bartram v. State
...the complaining witness, Holmes v. State, 160 Ark. 218, 254 S.W. 470 (1923); (d) the son-in-law of the murder victim. Oglesby v. State, 83 Fla. 132, 90 So. 825 (1922); (e) the father of a rape case prosecutrix, Zell v. State, 15 Ohio App. 446, 32 Ohio C.A. 385 (1922); (f) the committing mag......
-
Haddock v. State
... ... Pleas in abatement must be certain (to a certain intent) in ... every particular. They must leave nothing to be supplied by ... intendment and no supposable special answer unobviated. See ... Cannon v. State, 62 Fla. 20, 57 So. 240; Taylor ... v. State, 49 Fla. 69, 38 So. 380; Oglesby v ... State, 83 Fla. 132, 90 So. 825; Marks v. State, ... 115 Fla. 497, 155 So. 727. It is possible that the lower ... court's ruling on the demurrer could by this court be ... sustained because of the uncertainty of many of the ... allegations of fact appearing in the plea, but we shall ... ...
-
Lake v. State
...Compiled General Laws of 1927), defines the only ground of challenge to the favor applicable to grand jurors in this state, Oglesby v. State, 83 Fla. 132, 90 So. 825, while section 2692, Revised General Statutes of 1920 4359, Compiled General Laws of 1927), defines those applicable to petit......
-
Hopkins v. State, 297
...the complaining witness, Holmes v. State, 160 Ark. 218, 254 S.W. 470 (1923); (d) the son-in-law of the murder victim, Oglesby v. State, 83 Fla. 132, 90 So. 825 (1922); (e) the father of a rape case prosecutrix, Zell v. State, 15 Ohio App. 446, 32 Ohio C.A. 385 (1922); (f) the committing mag......