Prevatt v. State

• Decision Date: 28 November 1938
• Citation: 135 Fla. 226,184 So. 860
• Parties: PREVATT v. STATE.
• Court: Florida Supreme Court

184 So. 860

135 Fla. 226

PREVATT v. STATE.

Florida Supreme Court

November 28, 1938

Rehearing Denied Dec. 22, 1938.

Error to Criminal Court of Record, Palm Beach County; W. M. Murphy Judge.

Brady L. Prevatt was convicted of perjury, and he brings writ of error.

Affirmed.

COUNSEL

E. M. Baynes, of West Palm Beach, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for the State.

OPINION

BUFORD Justice.

Writ of error brings for review judgment of conviction of the crime of perjury.

The information charged:

'That Brady L. Prevatt of the County of Palm Beach and State of Florida, on the 18th day of September in the year of our Lord one thousand, nine hundred and thirty-six in the County and State aforesaid a certain cause was then and there pending in the Chancery side of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, in which one Russell Sutcliffe and Elma L. Sutcliffe were Petitioners, and Bobby Sutcliffe Miller was defendant; that said cause was a Petition for the custody of the minor child, Russell Sherrick Sutcliffe, and it then and there became and was a material matter of which said Court then and there had jurisdiction for the Court and Judge to know and be informed as to whether or not Bobbie Sutcliffe Miller was a fit and proper person to have the care, custody and control of the said minor child, Russell Sherrick Sutcliffe, and the said Brady L. Prevatt then and there with his own consent and in due form of law was sworn as a witness in said cause before the Honorable C. E. Chillingworth, Judge of said Court, and the said Brady L. Prevatt voluntarily, with his own consent, took an oath as witness to tell the truth, the whole truth and nothing but the truth, the said oath being administered by the said Judge, touching upon the matter of the fitness of the said Bobbie Sutcliffe Miller and the fact whether or not the said Bobbie Sutcliffe Miller was a fit and proper person to have the care, custody and control of the said Russell Sherrick Sutcliffe and the said Brady L. Prevatt then and there, upon his oath as a witness aforesaid, did wilfully, wickedly, corruptly, designedly and falsely swear and depose in substance, that during the winter prior to the 18th day of September, 1939, he saw the said Bobbie Sutcliffe Miller at the Lake Worth casino several times and that nearly every time that she came there she came drunk, and that she would very often curse, and that he had to get her several times and her party to go back in the wing of the dance hall where they had tables and chairs and that on one occasion Roy Austin was present, which said statements of fact aforesaid were then and there knowingly, designedly, wilfully, wickedly and corruptly perjured, false and untrue, and the said Brady L. Prevatt then and there well knew the statements, depositions and testimony and the particulars aforesaid were false, perjured and untrue, but notwithstanding, he the said Brady L. Prevatt, then and there in said Court and said cause then and there the same upon his oath testified to and swore, in substance, as aforesaid, for the purpose of deceiving the said Court and to cause the said Court to award the care, custody and control of the said minor child, Russell Sherrick Sutcliffe, to Petitioners Russell Sutcliffe and Elma L. Sutcliffe; that whereas, in truth and in fact, the truth of the matter then and there so sworn and testified to by the said Brady L. Prevatt was that the said Bobbie Sutcliffe Miller was at no time during the winter prior to the 18th day of September 1936 at the Lake Worth Casino; that she was not drunk there; that she did not curse there; and that she was never asked to leave the floor by the said Brady L. Prevatt; and these facts the said Brady L. Prevatt then and there well knew to be true; and perjury, he, the said Brady L. Prevatt, did in the manner and form aforesaid then and there commit, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida.'

Plea in abatement was filed, alleging:

'1. That the witnesses before the County Solicitor upon which the information was based were not brought in before the said County Solicitor by due process of the Criminal Court of Record of Palm Beach County, Florida.

'2. That the evidence produced before the County Solicitor was insufficient in law upon which to base an information for perjury, and of this the defendant is ready to verify.

'Wherefore, your defendant prays judgment of the said information, and that the same may be quashed.'

Issue was joined on the plea in abatement. Trial was had and the jury returned a verdict as follows:

'We, the jury, find that the witnesses before the County Solicitor upon which the information in this case was based were brought in before the said County Solicitor by due process of the Criminal Court of Record of Palm Beach County, Florida; so say we all.'

Thereupon, the plea in abatement was denied and dismissed.

At the close of the testimony the defendant moved for directed verdict as follows:

'Mr. Baynes: I would like to make a Motion for a Directed Verdict, upon the following grounds:

'1. The State has not proved that the cause then and there pending in the Chancery side of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, was one in which one Russell Sutcliffe and Elma L. Sutcliffe were Petitioners and Bobbie Sutcliffe Miller was Defendant, but that the evidence shows that no such case was then pending or has ever been pending in the Circuit Court of the 15th Judicial Circuit in Palm Beach County, Florida.

'2. That no venue has been shown.

'3. That there is not shown that the testimony alleged to have been given was wilfully, wickedly, corruptly, designedly and falsely made, as alleged in this Information.

'4. The evidence itself is not sufficient to base a conviction upon for the reason that it is insufficient in law in that it is now shown by two witnesses or by one witness and other corroborating circumstances amounting to the testimony of another witness.'

Motion was denied.

The jury returned verdict of guilty, whereupon motion for new trial was filed containing four grounds, as follows:

'1. That the verdict and judgment is contrary to law.

'2. That the verdict and judgment is contrary to evidence.

'3. That the verdict and judgment is contrary to the weight of the evidence.

'4. That the State failed to prove the venue.'

Motion was denied.

The plea in abatement, while not as clear as it might have been, was not demurred to and it may be that the allegations of paragraph 1 constituted a sufficient plea. This question, however, is not presented because the State joined issue on the plea. During the progress of the trial on the plea in abatement, the following occurred:

(Mrs. Jennie Moore having been sworn as a witness)

'Mr. Roebuck: Q. I will ask you to tell the jury whether or not during the time you were in my office and before you were sworn there, and before testifying, were you served with a subpoena?

'A. Yes.

'Q. Tell the jury who served that subpoena upon you.

'A. Mr. Matthews, I believe, a deputy sheriff.

'Q. I will ask you whether or not you know Mr. Matthews to be a deputy sheriff of this County?

'A. Yes.

'Q. After the time of the service of this subpoena in my office, state whether or not you were then sworn.

'A. I was.

'Q. Tell the jury whether or not you then testified before me; not what you testified to, but did you testify before me?

'A. I did, under a sworn statement, to Mr. Roebuck.

'On examination by Mr. Baynes:

'Q. Did you testify in reference to a charge against Brady L. Prevatt for perjury?

'A. I did.

'Q. Do you know anything personally about the facts in this case?

'Mr. Roebuck: I object, Your Honor; whatever she testified to is a privileged communication like testimony in the Grand Jury Room.

'Mr. Baynes: Let the jury retire, please.

'The Court: I don't see any objection to them hearing it; They are not to decide that part.

'Mr. Baynes: Mrs. Moore, What did you testify to?

'Mr. Roebuck: I object, Your Honor.

'The Court: Sustained. (Exceptions noted.)

'Mr. Baynes: I have a case in point, Your Honor.

'The Court: The Court is so clear that that is not admissible that I don't think we will go into it.

'Mr. Baynes: I think we have the right to make proffer.

'Mr. Roebuck: I object, Your Honor.

'The Court: Sustained. (Exceptions noted.)

'Mr. Baynes: Please let the record show that counsel for defendant in the Plea in Abatement--that the Court refused to allow him to show and make proffer, in the absence of the jury, of what the witness would testify to and that the Court did not require the jury to retire from the Court Room (to which the Defendant notes exceptions).

'Mr. Baynes: If that is the ruling of the Court, I couldn't go any further in the Plea in Abatement.

'The Court: That is the ruling of the Court.

'Q. How many of you witnesses appeared before the County Solicitor at that time when you were up there?

'A. Myself and my daughter.

'Q. You all were the only two?

'A. Yes.

'Q. You received your subpoena after you had gotten into the County Solicitor's Office?

'A. Yes.

'Q. And it was received by you and your daughter in the County Solicitor's Office?

'A. Yes, Sir.'

Then, when Mr. Roebuck, the County Solicitor, was on the stand the following occurred:

'Q. They voluntarily came there and after they came there you had this praecipe for subpoena gotten out?

'A. Yes, just like I have probably thousands of others, as a matter of convenience; I had this issued and...