People of State of N.Y., Application of

CourtUnited States State Supreme Court of Florida
Writing for the CourtTHOMAS; TERRELL
Citation100 So.2d 149
Decision Date22 January 1958
PartiesApplication of the PEOPLE OF the STATE OF NEW YORK for an Order Requiring Joseph C. O'NEILL to Attend and Testify Before the Grand Jury of the County of New York, State of New York.

Page 149

100 So.2d 149
Application of the PEOPLE OF the STATE OF NEW YORK for an Order Requiring Joseph C. O'NEILL to Attend and Testify Before the Grand Jury of the County of New York, State of New York.
Supreme Court of Florida.
Jan. 22, 1958.
Rehearing Denied Feb. 24, 1958.

Page 151

Richard W. Ervin, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., and Frank S. Hogan, Dist. Atty., New York County, New York City, for appellant.

L. J. Cushman, Miami, for appellee.

THOMAS, Justice.

On 23 April 1956 there was filed in the Circuit Court of Dade County, Florida, the certificate of Honorable Mitchell D. Schweitzer, Judge of the Court of General Sessions of the State of New York, reciting that he had read an affidavit signed by an Assistant District Attorney of the County of New York, recommending that one Joseph C. O'Neill be taken into custody and delivered to an officer of the State of New York to assure his attendance there and that the witness, O'Neill, be brought immediately before the Florida court for hearing on the matter of extradition.

It was stated in the certificate that the District Attorney had been conducting before a grand jury an investigation of the use of funds of certain labor unions and the activities of union officials in the handling of such monies. The grand jury was undertaking to determine whether or not union officials and representatives had conspired to steal funds belonging to the unions in violation of Secs. 580 and 1290 of the Penal Law of New York, McKinney's Consol.Laws, c. 40.

In the certificate O'Neill was designated a material and necessary witness in the investigation. He was described as General President of the Distillery, Rectifying, Wine and Allied Workers' International Union of America, Chairman of the Executive Board, and Chairman of the Social Security Department which administers the welfare fund of the union. The grand jury purposed to learn from him about disposition of the union's funds.

According to the judge's certificate efforts to procure the attendance of O'Neill had been unsuccessful and he had refused to appear voluntarily and testify. Inasmuch much as he resided in Illinois, in which no reciprocal witness statute has been enacted, the office of the District Attorney could not compel his presence.

Continuing, it was stated that the District Attorney learned that a convention of the union would be held in Miami 23 April 1956 and that under the constitution of the union the president, O'Neill, was required to be present and preside.

By the certificate O'Neill was assured of protection from arrest or service of civil and criminal process in connection with matters arising before his entrance into New York should he appear under court order.

We see no occasion to give a summary of the statements in the affidavit of the Assistant District Attorney as they seem harmonious with the ones appearing in the judge's certificate which contains sufficient information for determination of the points in controversy.

There was incorporated in the affidavit the request that the court under Sec. 618-a of the New York Code of Criminal Procedure issue the certificate we have described.

Upon the filing of the certificate in the Circuit Court of Dade County the judge ordered the sheriff to attach O'Neill and bring him forthwith before the court to show cause why an order should not immediately issue for his custody and his delivery to an officer of the State of New York. Evidently the same day the certificate was filed O'Neill was apprehended and gave bond, although there is no provision in our statute, Sec. 942.02, Florida Statutes 1955, F.S.A., for such a bond.

A month later O'Neill filed a response and after another month had passed a hearing was held by the circuit judge when arguments of Assistant District Attorneys

Page 152

from New York and O'Neill's counsel were presented but at which no testimony was taken. Subsequently the judge, basing his opinion on the record, concluded that Sec. 942.02, supra, was unconstitutional because by it the state was given extraterritorial jurisdiction, the right of ingress and egress across the state line was impaired and the witness could be taken into custody here and delivered into custody of an officer of another state without bail. Also, the judge thought the certificate of the Judge of the Court of General Sessions of New York and the affidavit of the Assistant District Attorney did not depict a situation showing that O'Neill was a material and necessary witness.

We dismiss the last point with the observation that it is plain to us O'Neill is a material and necessary witness in the investigation of the misuse of funds of the union. By the terms of the act, the certificate of the judge must be taken as 'prima facie evidence of all the facts stated therein.' It may be logically deduced that because of the positions held by O'Neill he is familiar with the funds of the organization if, indeed, he does not supervise or control them, and we think that in an investigation of the administration of those funds he would prove a material and necessary witness.

It is stated in the brief of the Attorney General that the 'appellant' filed a notice of appeal and filed 'its' assignments of error and 'its' directions to the clerk.

Upon an examination of the record, we find that the notice of appeal was filed by 'The Applicant, the People of the State of New York' and that it, the assignments of error and the directions to the clerk, carried the names of the District Attorney of New York County, the Attorney General of Florida, the State Attorney of the Eleventh Judicial Circuit and an Assistant State Attorney but were signed only by the Assistant State Attorney. On the notice of appeal these officers were described as attorneys for 'applicant' and on the assignments of error and directions to the clerk, as attorneys for 'appellant'.

Soon after the appeal was lodged here the attorney for Joseph C. O'Neill moved to dismiss it, and the members of the court sitting at the time deferred a ruling until hearing of the cause on the merits.

We have now reconsidered the motion and have concluded we should proceed to a determination of the dispute on the merits, that is, the adjudication of the validity of Sec. 942.02, supra. The motion was based on the ground that this court had no jurisdiction because the order attempted to be reviewed was entered in a criminal proceeding and the state had no right to appeal except from orders specified in Sec. 924.07, Florida Statutes 1955, F.S.A., of which the order of the circuit judge was not one, and further that the People of the State of New York had no right of appeal. The Attorney General countered on the ground that the case was a civil proceeding and asked this court to consider the appeal a petition for certiorari, under Sec. 59.45, Florida Statutes 1955, F.S.A., if it appeared that the appeal had been improvidently taken.

We agree with the Attorney General that the proceeding is not criminal and that appeal was the proper method of review as, by Sec. 5 of Art. V of the Constitution, F.S.A., this court had 'appellate jurisdiction in all cases at law * * * originating in Circuit Courts * * *.' The case originated in the circuit court and the appeal was filed before the effective date of the amendment of Art. V. adopted in November 1956.

The procedure followed by the Attorney General is rather unusual because the record does not show any participation by him until the circuit judge had ruled. His name first appears on the notice of appeal. But the State of New York, in our opinion, had the right to appeal as O'Neill would have had if the judgment had been unfavorable to him. The appeal became

Page 153

came effective when the notice was filed by the District Attorney of New York County. The introduction of the Attorney General into the controversy was somewhat unorthodox but in view of the mandate in Sec. 22 of Art. IV of the Constitution that he 'perform such other legal duties as may be prescribed by law' and the requirement of Sec. 16.01, Florida Statutes 1955, F.S.A., that he 'appear in and attend to in behalf of the state, all suits or prosecutions, civil or criminal, or in equity, in which the state may be a party, or in any wise interested * * *' we will consider his entrance via the notice of appeal an effort to present...

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4 practice notes
  • People of the State of New York v. Neill, No. 53
    • United States
    • United States Supreme Court
    • 2 Marzo 1959
    ...153. The Supreme Court of Florida affirmed this decision on the ground that the statute violated the United States Constitution. 100 So.2d 149. We granted certiorari, 365 U.S. 972, 78 S.Ct. 1137, 2 L.Ed.2d 1146, inasmuch as this holding brings into question the constitutionality of a statut......
  • Mastrapa v. Money Laundering Strike Force, No. 3D05-2889.
    • United States
    • Court of Appeal of Florida (US)
    • 26 Abril 2006
    ...affirm the court's order. --------------- Notes: 1. This is a civil proceeding, see Application of the People of the State of New York, 100 So.2d 149 (Fla.1958), rev'd on other grounds, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). The order under review is a final one, thus reviewable by......
  • Epstein v. People of State of N. Y., No. 63-149
    • United States
    • Court of Appeal of Florida (US)
    • 12 Noviembre 1963
    ...because the proceedings with which we here deal are not criminal in nature. Application of the People of the State of New York, Fla.1958, 100 So.2d 149, rev'd on other grounds, People of State of N. Y. v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). They deal only with the quest......
  • People of State of N.Y., Application of
    • United States
    • United States State Supreme Court of Florida
    • 10 Junio 1959
    ...New York City, for appellant. L. J. Cushman, Miami, for appellee. PER CURIAM. The judgment of this court was entered 22 January 1958, 100 So.2d 149, affirming the decree of the Circuit Court of the Eleventh Judicial Circuit, 9 Fla.Supp. 153, in the above styled cause. On petition for writ o......
4 cases
  • People of the State of New York v. Neill, No. 53
    • United States
    • United States Supreme Court
    • 2 Marzo 1959
    ...153. The Supreme Court of Florida affirmed this decision on the ground that the statute violated the United States Constitution. 100 So.2d 149. We granted certiorari, 365 U.S. 972, 78 S.Ct. 1137, 2 L.Ed.2d 1146, inasmuch as this holding brings into question the constitutionality of a statut......
  • Mastrapa v. Money Laundering Strike Force, No. 3D05-2889.
    • United States
    • Court of Appeal of Florida (US)
    • 26 Abril 2006
    ...affirm the court's order. --------------- Notes: 1. This is a civil proceeding, see Application of the People of the State of New York, 100 So.2d 149 (Fla.1958), rev'd on other grounds, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). The order under review is a final one, thus reviewable by......
  • Epstein v. People of State of N. Y., No. 63-149
    • United States
    • Court of Appeal of Florida (US)
    • 12 Noviembre 1963
    ...because the proceedings with which we here deal are not criminal in nature. Application of the People of the State of New York, Fla.1958, 100 So.2d 149, rev'd on other grounds, People of State of N. Y. v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). They deal only with the quest......
  • People of State of N.Y., Application of
    • United States
    • United States State Supreme Court of Florida
    • 10 Junio 1959
    ...New York City, for appellant. L. J. Cushman, Miami, for appellee. PER CURIAM. The judgment of this court was entered 22 January 1958, 100 So.2d 149, affirming the decree of the Circuit Court of the Eleventh Judicial Circuit, 9 Fla.Supp. 153, in the above styled cause. On petition for writ o......

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