State Ex Rel. Brown v. Dewell

• Decision Date: 05 May 1936
• Citation: 123 Fla. 785,167 So. 687
• Parties: STATE ex rel. BROWN et al. v. DEWELL, Judge.
• Court: Florida Supreme Court

167 So. 687

123 Fla. 785

STATE ex rel. BROWN et al. v. DEWELL, Judge.

Florida Supreme Court

May 5, 1936

En Banc.

Original proceeding in mandamus by the State, on the relation of C. A Brown and others, against Robert T. Dewell, as Judge of the Criminal Court of Record of Polk County. On motion to quash the alternative writ.

Motion denied.

BROWN J., dissenting.

COUNSEL Whitaker Brothers, Charles F. Blake, and L. E Womack, all of Tampa, E. A. Bosarge and Luther Johnson, both of Bartow, and C. A. Boyer, of Orlando, for relators.

J. C Rogers, of Lakeland, J. Rex Farrior, of Tampa, L. P. Edwards, of Bartow, Manuel M. Glover, of Lakeland, and Wallace Shafer, of Haines City, for respondent.

An alternative writ of mandamus has been issued in this case, the material portions of which read as follows:

'Whereas, C. A. Brown, Sam E. Crosby, John P. Bridges, Robert Chappell, F. W. Switzer, C. W. Carlisle and R. G. Tittsworth, have by sworn petition represented unto the Supreme Court:

'First: A grand jury, acting in and for the body of Hillsborough County, State of Florida, did, during the month of December, 1935, conduct an investigation into the alleged kidnapping of one E. F. Poulnot, Sam J. Rogers, and Joseph A. Shoemaker, as well as into the alleged murder of the said Joseph A. Shoemaker; all being involved in and forming one and the same transaction. That in the course of said investigation so conducted by said grand jury, the said J. Rex Farrior, as States Attorney of Hillsborough County, Florida, and the said grand jury, caused witnesses to personally appear and testify before said grand jury in reference to said transaction, involving said alleged kidnapping and alleged murder; that among said persons who were so caused to appear and testify before said grand jury were E. F. Poulnot and Sam J. Rogers, and that each of said persons did personally appear before said grand jury and testify with reference to said kidnapping and murder; the said E. F. Poulnot and Sam J. Rogers being two of the parties alleged to have been kidnapped.

'Second: Relators further showeth that as a result of said investigation, the grand jury of Hillsborough County, Florida returned true bills or indictments against relators, charging relators with kidnapping, conspiracy to kidnap, second degree murder, and accessories to second degree murder; that subsequent thereto, C. Jay Hardee, as County Solicitor of Hillsborough County, Florida, filed informations against relators, charging them with said offenses as embraced in said indictments of kidnapping, conspiracy to kidnap, second degree murder and accessories to second degree murder, but that the County Solicitor did not have before him, nor take the testimony of said Poulnot and Rogers. That subsequent to the filing of said informations an order was duly entered changing the venue for the trial of said cases from Hillsborough County to Polk County, Florida.

'Third: Relators further showeth unto the court that they are, at the present time, on trial before the Criminal Court of Record of Polk County, Florida, Florida, which is presided over by Honorable Robert T. Dewell as Judge of said Criminal Court of Record; said relators being on trial on the information charging the kidnapping of and conspiracy to kidnap E. F. Poulnot.

'Fourth: That the State of Florida, by and through the prosecuting attorneys, has placed upon the stand as witnesses, Sam J. Rogers and E. F. Poulnot; that the said Sam J. Rogers has been interrogated by the State fully and completely with reference to his own kidnapping, as well as that of E. F. Poulnot, as well as that of Joseph A. Shoemaker, as well as into the death of the said Shoemaker; the State having been allowed to interrogate said witnesses about the entire transaction, as to all three of the alleged kidnappings and the alleged murder; that the said E. F. Poulnot has likewise testified on behalf of the State as to all of said matters. That relators have reversed the right to further cross-examine the witness, Sam J. Rogers, and that the examination of the witness E. F. Poulnot, in chief has not been completed.

'Fifth: That relators further showeth unto the court that when the said Sam J. Rogers and E. F. Poulnot testified before said grand jury in Hillsborough County, Florida in December, there were present in said grand jury room at the time they testified, the official court reporter of the Circuit Court of Hillsborough County, Florida, towit: R. F. Johnson; that said reporter was there with the permission of said Circuit Court, as well as of J. Rex Farrior, the States Attorney; that said reporter took down, stenographically, the testimony of said Poulnot and Rogers as testified to and given before said grand jury.

'Sixth: Relators further showeth that they are informed and believe that the said E. F. Poulnot and Sam J. Rogers, in testifying before said grand jury in Hillsborough County with reference to said transaction involving the kidnapping charges, as well as the murder charge, testified to material and essential facts, and made vital statements with reference to said transaction, contradictory to and wholly at variance with the testimony given by each of said witnesses before the jury in the Criminal Court of Record of Polk County, Florida, where said case is now being tried; that it is imperative and of paramount importance, as well as indispensable to the administration of justice that relators be enabled to establish before the jury at their present trial, the testimony given and facts testified to by the said Poulnot and Rogers before said grand jury, and that it is imperative that relators by fully advised and have access to the testimony so taken down by said R. F. Johnson, as Court reporter, of said Poulnot and Rogers, as testified to and given before said grand jury, in order that their counsel, at the present trial, may be enabled to properly cross-examine each of said witnesses and lay a proper predicate for impeachment.

'Seventh: Relators further show that they caused a subpoena duces tecum to be issued out of and by the Criminal Court of Record of Polk County, Florida, directed to the said R. F. Johnson and all of his deputies or assistants, requiring them to be and appear before the Judge of the Criminal Court of Record of Polk County, Florida, as a witness in the cause there on trial against these relators, and to bring with them and produce all short hand notes and all testimony given before the grand jury of Hillsborough County by Sam J. Rogers and Eugene F. Poulnot, wherein they testified concerning the alleged kidnapping of the said Eugene F. Poulnot, Sam J. Rogers, and Joseph Shoemaker, as well as wherein they testified relative to the said murder of the said Joseph Shoemaker, as well as produce the transcription of said testimony, a certified copy of said subpoena duces tecum being hereto attached, marked exhibit 'A' and made a part hereof. That the said Eugene F. Poulnot and Sam J. Rogers have already testified as witnesses for the State at said trial fully and thoroughly with reference to all of the matters mentioned in said subpoena; that said subpoena duces tecum was duly served upon the said R. F. Johnson, and he personally appeared before the Criminal Court of Record of Polk County, Florida, and the Honorable Robert T. Dewell as Judge thereof, in response to said subpoena, and was sworn before the said Judge and stated among other things that he had with him, in his possession, the transcribed testimony of the said E. F. Poulnot and Sam J. Rogers, as testified to and given by each of said witnesses before the grand jury in reference to the matters mentioned in said subpoena, and the said Johnson stated that he was willing to comply with said subpoena duces tecum by turning over said transcribed testimony to the Clerk of the Criminal Court of Record of Polk County, Florida, or to relators' counsel, except for the fact that he had been placed under oath before or at the time he was in the grand jury room and took down the testimony of said witnesses; counsel for relators; insisted that the Honorable Robert T. Dewell order and direct the said Johnson to turn over; either to the Clerk of the Criminal Court of Record of Polk County, Florida, or to them, said transcribed notes, but the said Judge denied said asking and ruled that the said Johnson could not be required to turn the same over to the Clerk of said Criminal Court of Record or to counsel for relators.

'Eighth Relators further showeth unto the Court that the testimony of the said Poulnot and Rogers was given before said grand jury in the month of December, 1935; that the said grand jury remained in continuous session up until the first week in April, 1936, during which time they were investigating into the alleged gambling condition in Tampa, alleged crooked election condition, as well as many other matters, having before them hundreds of witnesses; that in addition they had before them over one hundred witnesses in connection with the alleged kidnappings and alleged murder involved in the case now on trial; that by reason of the large number of witnesses and numerous complicated matters before them, it is impossible for counsel for relators to secure from any juror a clear or distinct recollection as to the testimony given by E. F. Poulnot or Sam J. Rogers, and therefore, it amounts to a denial of justice to deprive relators of access to the transcribed testimony of said witnesses as given by the grand jury; that to deprive relators of access to this transcribed testimony will inflict upon relators irreparable injury, and that relators have no other way or means by which they can secure the testimony given by said Poulnot and Rogers before and...