Raines v. State

• Decision Date: 31 March 1953
• Citation: 65 So.2d 558
• Parties: RAINES v. STATE.
• Court: Florida Supreme Court

Page 558

65 So.2d 558

RAINES v. STATE.

Supreme Court of Florida, en Banc.

March 31, 1953.

Rehearing Denied June 2, 1953.

William C. Pierce and Manuel M. Garcia, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen., for appellee.

TERRELL, Justice.

Appellant and V. R. Selph were tried for bribery on an information in three counts. The first count charged appellant with exacting a bribe of $500 from Tracy Phillip to issue him a license to practice barbering in Florida. The second count charged that appellant accepted the bribe. The third count charged appellant and Selph jointly with exacting and accepting the bribe. Appellant was convicted on counts one and two and Selph was acquitted. Appellant was sentenced to a term of five years in the state penitentiary. We are confronted with an appeal from that judgment.

It is first contended that the trial court committed error in recessing the Court, sending the jury home for the night about 6:30 P.M., and ordering it to reassemble the next morning at 9:30 A.M. to continue its deliberations.

The record discloses that the case had been fully submitted to the jury and that it had been deliberating for more than one and one-half hours without reaching a verdict when the recess was taken. It was taken without consent of or objection on the part of counsel and the jury went home for the night without any instructions or the protection of a bailiff. They were out for fifteen hours, resumed deliberations, found defendant guilty, and acquitted his co-defendant.

Section 919.01(1), F.S.A., provides in effect that after the jury is sworn it shall sit together, hear the proofs against the accused and that it shall be kept together in some convenient place till it agrees on a verdict or is discharged. Section 919.02, F.S.A., provides for separation of the jury for a definite period. Section 920.05, F.S.A., details grounds for new trial, and Section 924.33, F.S.A., provides that no judgment shall be reversed for error unless it is shown to have injuriously affected the substantial rights of the appellant. It further provides that error affecting substantial rights shall not be presumed.

The state contends that when read together these statutes permit separation of the jury and that when done a new trial will not be granted unless substantial rights of defendant have been affected and that defendant having failed to object when the jury was recessed for the night, waived his right to object at this time. The following cases are relied on to support this contention. Lucas v. United States, 8 Cir., 275 F. 405; State v. Dugan, 52 Kan. 23, 34 P. 409; State v. McNeil, 59 Kan. 599, 53 P. 876; Farris v. State, 74 Tex.Cr.R. 607, 170 S.W. 310; Fowler v. Commonwealth, 260 Ky. 433, 86 S.W.2d 148.

The record does not show that appellant raised any objection whatever to the order of the Court permitting the jury to separate and go to their homes for the night. In the last cited case the Kentucky Court held that no objection having been made at the time, appellant waived his right to object and could not raise it the first time on motion for new trial. The following cases support this view: Sharp v. People, 90 Colo. 356, 9 P.2d 483; Williams v. State, 27 Ala.App. 293, 171 So. 386; Martin v. State, 92 Okl.Cr. 182, 222 P.2d 534.

Whether or not separation of the jury for the night without instruction as to communicating with others and without the protection of bailiff was error, turns on the interpretation of the governing statutes cited in the forepart of this opinion. There was no objection raised when the jury was dispersed, nor were counsel consulted. There is no showing in the way of evidence that defendant's rights were prejudiced but trials should not be conducted in a way that defendant had good reason for the belief that he was deprived of fundamental rights. The opportunity was open for tampering with the jury and the temptation to do so was such that we are not convinced that the appellant's trial was conducted with that degree of fairness and security that the bill of rights contemplates. A fifteen hours absence under no restraint whatever leaves too much room to question the bona fides of everything that took place during that time, particularly when one defendant was acquitted and the other was convicted on the same charge and evidence. It imposes too great a burden on defendant to produce evidence of prejudice to his rights under such circumstances. We think this error calls for reversal.

It is next contended that appellant, being a member of the State Barber Board, with two others, was without authority to issue a license to practice the business of a barber, and being so, he could not legally be convicted of a charge that he was powerless to commit.

The rule seems to be well settled that an officer cannot be charged and convicted of an act that is entirely outside the scope of his legal duties. This court is committed to the doctrine that any one who corruptly offers, gives, or receives anything of value to influence the receiver's official action, is guilty of bribery. Richards v. State, 144 Fla. 177, 197 So. 722; State v. Potts, 78 Iowa 656, 43 N.W. 534, 5 L.R.A. 814; People v. Jackson, 191 N.Y. 293, 84 N.E. 65, 15 L.R.A.,N.S., 1173; State v. Ellis, 33 N.N.L. 102, 97 Am.Dec. 707; Rembrandt v. United States, 6 Cir., 281 F. 122, certiorari denied 260 U.S. 731, 43 S.Ct. 93, 67 L.Ed. 486; People v. McGarry, 136 Mich. 316, 99 N.W. 147, and many others.

The last cited cases are in harmony with the rule approved in this state with reference to giving or receiving anything of value to influence one's official conduct, so there is no merit to appellant's contention in support of that point.

The judgment appealed from is therefore reversed and a new trial awarded.

Reversed.

ROBERTS, C. J., and HOBSON and DREW, JJ., concur.

THOMAS and SEBRING, JJ., dissent.

MATHEWS, J., not participating.

DREW, Justice (concurring specially).

The plain mandate of the Legislature, section 918.06, F.S.A., was violated by the lower court in this trial. I cannot conscientiously say that 'the substantial rights of the defendant have not been prejudiced' where the record shows a conviction and a sentence to five years in the State Prison. I, therefore, agree that the ends of justice would be served by awarding a new trial.

SEBRING, Justice (dissenting).

I agree with the conclusion reached in the majority opinion which rejects appellant's claim that because he was without authority to issue a barber's license he could not legally be convicted of a charge that he was powerless to commit. I agree, also, that under the controlling statutes the trial judge had no authority to permit the jurors to separate after they had retired to consider their verdict. I cannot agree, however, that because the jurors were allowed to separate temporarily, a reversal of the judgment appealed from should be ordered.

As I understand the applicable law, the situations under which the members of a petit jury may be allowed to separate in the course of a criminal trial are expressly delineated by sections 918.06 and 919.02, Florida Statutes 1951, F.S.A.

Section 918.06 provides, in effect, that after the jurors have been sworn but before the cause has been finally submitted to them the trial judge, in his discretion, may permit them to separate. Section 919.02 provides, in effect, that if the jurors have not been kept together during the trial but have been allowed to separate in accordance with the provisions of section 918.06, supra, the trial judge, after the final submission of the cause but before the jury has retired to consider its verdict, may order 'that the jurors may separate for a definite time to be fixed by the court and then reconvene in the courtroom before retiring for consideration of their verdict.' (Italics supplied.)

These are the only statutes which allow the separation of jurors in the course of a criminal trial, and, as plainly appears from their language, are applicable only as to separation of jurors prior to the time the jury has retired to consider its verdict.

After the case has been submitted and the jury has retired to consider its verdict a different rule obtains. Section 919.01(1), Florida Statutes 1951, F.S.A., prescribes that after the jurors have heard the proofs and allegations in the case they 'shall be kept together in some convenient place until they agree upon a verdict or are discharged by the court * * *.' (Emphasis supplied.) It is clear, therefore, that once the jury in a criminal case retires to the jury room to consider its verdict it should not be allowed to separate until it has reached a verdict or has been discharged by the court for valid reasons.

Section 919.21, Florida Statutes 1951, F.S.A., sets out five grounds upon which the trial court may discharge the jury after it has retired to the jury room to consider its verdict. These grounds are that the verdict of the jury has been duly recorded in the minutes of the court; that a necessity exists for the discharge of the jury; that upon the expiration of such time as the court deems proper, the court is convinced that there is no reasonable probability that the jurors can agree upon a verdict; that the court has finally adjourned; that the prosecuting attorney and the defendant have consented that the jury may be discharged.

In the instant case the record shows that after the jury had retired, and while it was considering its verdict, the presiding judge called the jurors back into the courtroom and then permitted them to separate so that they might spend the night at home. They returned the next morning and were sent back into the jury room for further deliberations. Subsequently they brought in their verdict, and, after the same had been recorded, were discharged from further consideration of the case.

It is contended by the appellants that the act of the trial...