State ex rel. Feldman v. Kelly
| Decision Date | 19 November 1954 |
| Citation | 76 So.2d 798 |
| Parties | STATE ex rel. Phil FELDMAN, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. Max SHLAFROCK, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. Charles MARKS, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. David LIPPERT, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. Charles SMOLIKOFF a/k/a Charles Small, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. Water MARKS, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. Augusta BIRNBERG, of constitutional privilege against self-incrimination v. Thomas J. KELLY, Respondent. STATE ex rel. Emanuel GRAFF, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. Maurice CARROLL, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. Abraham SORKIN, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. H. D. PRENSKY, DDS, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. Michael SHANTZEK, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. Morris ROHINSKY, Petitioner, v. Thomas J. KELLY, Respondent. STATE ex rel. Jose CARBONELL, Petitioner, v. Thomas J. KELLY, Respondent. |
| Court | Florida Supreme Court |
L. J. Cushman, Miami, for Phil Feldman and H. D. Prensky, DDS, petitioners.
Tobias Simon, Miami Beach, for Morris Rohinsky, petitioner and appellant.
Howard W. Dixon, Miami, for Jose Carbonell and Max Shlafrock, petitioners and appellants.
Louis Glick, Miami, and John M. Coe, Pensacola, for Michael Shantzek, David W. Lippert and Charles N. Smolikoff, a/k/a Charles Small, petitioners and appellants.
Erstling, Zuckerman & Ehrich, Miami, for Walter Marks, petitioner.
Milton R. Wasman, Miami, for Emanuel Graff, Petitioner.
Louis Glick, Miami, and T. T. Turnbull, Tallahassee, for Augusta Birnberg and Maurice Carroll, petitioners.
George Kastenbaum, Miami Beach, for Abraham Sorkin, petitioner.
Eli Breger, Miami Beach, for Walter Marks, petitioner.
George A. Brautigam, State's Atty., Miami, Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent and appellee.
These cases involve appeals from orders in habeas corpus proceedings originating in the circuit court of Dade County or orders on petitions for habeas corpus filed in this Court wherein petitioners were adjudged in contempt and committed to jail for refusing to answer questions before the grand jury with reference to any knowledge they might have about communist activities prior to a period of two years and one day next preceding the date of interrogation. Each defendant refused to answer on the ground that his answer might incriminate him. All petitioners invoked the protection of the Fifth Amendment to the Federal Constitution and Section 12, Declaration of Rights, constitution of Florida, F.S.A.
The 14 petitioners and appellants will hereinafter be referred to as petitioners, and appellee or respondent, Sheriff of Dade County, will hereinafter be referred to as respondent. The petitioners are regularly before this Court. By agreement of the parties, the cases were combined and argued together. It was also admitted that the questions propounded in each case were common and could be answered in one opinion. The questions propounded to petitioners in the investigation before the grand jury varied slightly in content but all fell under one of the following categories:
(1) Questions conerning the witness' contacts with or association with the Communist Party or organizations affiliated with the Communist Party.
(2) Questions concerning the witness' acquaintance with or association with various named persons allegedly members of the Communist Party or organizations affiliated with the Communist Party.
(3) Questions concerning meetings attended by the witness at which various named persons allegedly members of the Communist Party or of organizations affiliated with the Communist Party were present.
Petitioners have propounded one question, and respondent has propounded six questions for us to consider but none of them comply with Kneale v. Kneale, Fla., 67 So.2d 233, wherein we attempted to define a clear and concise rule for stating questions on appeal. Compliance with this rule would pinpoint the issues and would extract all the 'blow gum' from the questions we are called on to adjudicate.
The real point for determination is whether or not one being investigated for communist activities may refuse to answer questions falling under one or all the categories above enumerated because he fears his answers would incriminate him, even though they revealed no more than one link in the chain of evidence against him. The Fifth Amendment to the Federal Constitution and Section 12, Declaration of Rights, Constitution of Florida, are relied on to shield them from answering.
Respondent contends that this question should be answered in the negative and supports that contention with the premise (1) it is not a crime to be a member of the Community Party, (2) petitioners are not charged with criminal communism, and (3) being interrogated in a state court they were not entitled to claim the protection of the Fifth Amendment to the Federal Constitution.
It is necessary that we refer to and consider F.S. §§ 876.01, 876.02(4, 5) and 876.03, F.S.A., in order to determine whether or not membership in the Communist Party is a crime in this state. These sections have reference to criminal communism and it is a crime and a felony, punishable by imprisonment for not more than 10 years or a fine of not more than $10,000, or both, to be a member of a criminal communist organization as defined and referred to in the above mentioned provisions of the law. As to whether or not there was an effort to connect petitioners with criminal communism, the record and the questions propounded them show that the investigation before the Grand Jury was about communist activities under the statute, including communist activities in Dade County. In our view said questions were ample to contemplate criminal communison. See State ex rel. Benemovsky v. Sullivan, Fla., 37 So.2d 907.
While the petitioners contend that they are entitled to claim the protection of the Fifth Amendment to the Federal Constitution, the courts have many times held that the Fifth Amendment applies only to Federal Courts and is not a limitation on the power of the states. The point is so well settled that citation of supporting authority is unnecessary. However, it should not be overlooked that Section 12, Declaration of Rights, Constitution of Florida, is a rescript of the Fifth Amendment, Federal Constitution; and the test in all such cases should be whether or not the answer to the question or questions would create a reasonable fear that criminal charges would be filed against petitioners. Under the early decisions the person questioned might determine this, but under later adjudications it is a question of law for the court to determine, governed by the setting in which he finds it. Brunner v. United States, 9 Cir., 190 F.2d 167; State ex rel. Mitchell v. Kelly, Fla., 71 So.2d 887; United States v. Weisman, 2 Cir., 111 F.2d 260.
The decisive cases on the point are Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170, and Brunner v. United States, 9 Cir., 190 F.2d 167, reversed in 343 U.S. 918, 72 S.Ct 674, 96 L.Ed. 1332, on authority of Blau v. United States. The Blau case had to do with a prosecution under the Smith Act, effective June 28, 1940, 18 U.S.C.A. § 2385. Chapter 20216, Laws of Florida, now Sections 876.01-876.04, F.S.A., under which the present investigation was instituted, was passed in 1941. In legal effect the latter Florida Act is a rescript of the Smith Act, both having been designed for the same purpose. The Florida Act having been patterned on the Smith Act, we have elected to accept the interpretations of the Smith Act by the federal Courts. Duval v. Hunt, 34 Fla. 85, 15 So. 876; State ex rel. Porter v. Atkinson, 108 Fla. 325, 146 So. 581; Kidd v. City of Jacksonville, 97 Fla. 297, 120 So. 556; Gay v. Inter-County Tel. & Tel. Co., Fla., 60 So.2d 22. Under the rule prescribed in these cases, interpretation of the Florida act should follow the interpretation of the Smith Act by the Federal Courts; hence we say the Blau case concludes the point.
The questions propounded to the petitioners were in all material respects similar or identical to those propounded to defendant in the Blau case. The act in question, Section 876.02, F.S.A., as does the Smith Act, provides that if the evidence shows that one is 'a member of, associated with * * * or affiliated with' any organization which 'advocates, advises, or teaches the duty, necessity or propriety of overthrowing or overturning existing forms of constitutional government by force or violence' that is sufficient to establish guilt. It is accepted as true in this country that the Communist Party and communist front organizations take their orders from the mother organization in the Soviet Union and are dedicated to teaching and advocating the overthrow of constitutional government by force and violence and that proof of one's affiliation or membership in such organizations is a felony under the Smith Act (or under Sections 876.22 to 876.24, F.S.A.) Eisler v. United States, 84 U.S.App.D.C. 404, 176 F.2d 21, certiorari denied 337 U.S. 958, 69 S.Ct. 1534, 93 L.Ed. 1758; Appeal of Albert, 372 Pa. 13, 92 A.2d 663.
The view expressed in the preceding paragraph and cases cited doubtless would not have been accepted ten years ago, at which time we were allies of the Soviet Union and knew very little of their philosophy of government. It has in the main crystallized the last few years from revelations brought to light by legislative investigations, numerous communist trials and what the public has gathered about the aims and purposes of the Communist Party from other sources. Section 876.02(4) and (5), outlawing the Communist Party, contained no finding...
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