Smith v. State

• Decision Date: 29 May 1957
• Citation: 95 So.2d 525
• Parties: Geraldine SMITH, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 525

95 So.2d 525

Geraldine SMITH, Appellant, v. The STATE of Florida, Appellee.

Supreme Court of Florida, Special Division A.

May 29, 1957.

Carr & O'Quin and Marshall G. Curran, Jr., Miami, for appellant.

Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

WELCH, Associate Justice.

The defendant, Geraldine Smith, was indicted by a grand jury in Dade County for the crime of murder in the first degree and was convicted by a jury of the crime of manslaughter; was adjudged guilty and sentenced by the court of Dade County to the State prison for a term of fifteen years. From this judgment and sentence she has taken her appeal to this Court, and poses two questions, as follows:

Question No. One.

'Did the Trial Court err in refusing to allow Counsel for defendant to examine the typewritten manuscript with which the State Attorney attempted to impeach the witness, Richard Boyce?'

Question No. Two.

'Was it error for the Court to send a dictionary to the jury without first informing Counsel for the defendant in open Court?'

Taking up the first question first, we glean from the record that the statement in question was a transcript of the testimony of the witness, Richard Boyce, taken by and before the State Attorney in his office sometime prior to the trial. It appears that this witness, Richard Boyce, had been summoned by the State, but was called and put upon the stand by the defendant, and during the course of the trial this witness was asked on cross-examination with regard to whether he had made certain statements on a previous examination before the State Attorney; the statements allegedly made by the witness related to what he, Richard Boyce, had told the State Attorney concerning the defendant's account of how the homicide occurred. During the course of this cross-examination with regard to the previous statements of the witness the State Attorney referred to certain documents he had in his file, evidently for the purpose of impeaching the witness; defense counsel moved the Court to require the State Attorney to allow an examination of that written document by which the State Attorney was attempting to impeach the defense witness. The motion was denied by the Trial Court; and this action of the Trial Court in denying this motion is the basis for appellant's question number one.

This Court, speaking through Mr. Justice Mabry, in the case of Simmons v. State, reported in 32 Fla. 387, 13 So. 896, 897, said:

'Where a witness does not distinctly admit on cross-examination that he has made a former statement inconsistent with his present evidence, our statute permits such statement to be put in evidence upon proof of the circumstances of the supposed inconsistent statement sufficient to designate the particular occasion, and the witness being asked whether or not he made such statement. Rev.St. Sec. 1102. The general rule that a witness cannot be impeached by proof of inconsistent statement without first laying the proper foundation for the introduction of such evidence, applies to written statements or written testimony of witnesses taken down before a committing magistrate. Such testimony cannot, for the purpose of impeachment, be read to the jury, unless it be produced and shown to the witness, and his attention called to the contradictory statements, in order that he may explain them if he can. Where the testimony of a witness before a committing magistrate has been reduced to writing and signed by him he cannot, of course, be cross-examined as to the contents of this testimony without showing him the evidence or allowing him to hear it read. The rule on this subject has been regarded as settled since the Queen's Case, 2 Brod. & B. 284 * * *.'

The State relies on the Whitaker case (Whitaker v. Blackburn, Fla., 74 So.2d 794, 796). This writer is of the opinion that the Whitaker case can be distinguished from the case at bar, because in the Whitaker case the Court was dealing with papers and memoranda of a private and unofficial nature, and in discussing the question in the Whitaker case the Court said:

'* * * Has the court authority to compel counsel, on request of his adversary, to deliver this prepared memoranda for his inspection? Could such a practice of search and seizure be justified by the law for any reasonable rule of procedure? If so, an attorney's private papers and his written data--his private notes made to aid memory on the trial--are no longer safe or sacred, and their possession may be ordered given over to one who has no legal claim to or upon them. Such an order would very much resemble the order under review. We cannot accord to one accused of crime what could not be awarded to the lawabiding citizen in a court of justice.' (Emphasis supplied.)

This poses the following question: Was the transcript of the witness' testimony, taken before the State Attorney, a private paper, or memorandum?

We take judicial knowledge of the fact that the State Attorney is a constitutional officer, and an arm of the Court. The State Attorney has the power to subpoena witnesses to appear before him and have them testify before him concerning matters which he is investigating. This is a power that a lawyer in private practice does not have. A witness can be compelled to go before the State Attorney and testify, but he cannot be so compelled to go before and testify before a private attorney. It is not the duty of a State Attorney merely to secure convictions; the State Attorney is required to represent the State, it is his duty to present all...