State Ex Rel. Luban v. Coleman

• Decision Date: 09 June 1939
• Parties: STATE ex rel. LUBAN v. COLEMAN, Sheriff.
• Court: Florida Supreme Court

189 So. 713

138 Fla. 555

STATE ex rel. LUBAN v. COLEMAN, Sheriff.

Florida Supreme Court, Division A.

June 9, 1939

Rehearing Denied June 24, 1939.

Error to Circuit Court, Dade County; Worth W. Trammell, Judge.

Habeas corpus proceeding by the State of Florida, on the relation of Sherman Luban, against D. C. Coleman, Sheriff of Dade County Fla. Judgment remanding petitioner to custody of respondent and petitioner brings error.

Reversed.

COUNSEL Walsh, Beckham & Ellis, of Miami, for plaintiff in error.

George Couper Gibbs, Atty. Gen., Thomas J. Ellis, Asst. Atty. Gen and G. A. Worley, of Miami, for defendant in error.

OPINION

BUFORD Justice.

The writ of error brings for review judgment in habeas corpus proceedings remanding petitioner to the custody of the respondent who held the petitioner under a judgment of contempt.

The judgment of contempt is as follows:

'The Court: It is very patent to this Court that you were deliberately lying in this case, trying to protect somebody. So long as a man tries to tell the truth I am with him, but I have the utmost contempt for a liar. You are evidently trying to protect somebody. I am going to give you 30 days in jail for contempt of Court.

'Witness Luban: May I say something in my defense?

'The Court: No, I have heard all I care to hear from you.'

We gather from the record that petitioner was called as a witness for the State in a case wherein an information had been filed as follows:

'Robert R. Taylor, County Solicitor for the County of Dade, prosecuting for the State of Florida, in the said County under oath, information makes that Twin City Vending Co., Inc., Sam Feldman and M. D. Goldhagan of the County of Dade and State of Florida, on the 30th day of November in the year of our Lord, one thousand nine hundred and thirty-seven, in the County and State aforesaid, did then and there unlawfully own, store, keep, possess, sell, rent, lease, let on shares, lend and give away, and permit the operation of a machine or device for use in such a way that as a result of the insertion of any piece of money, coin or other object, such machine and device was caused to operate and was operated, and by reason of an element of chance and other outcome of such operation unpredictable by the user, the user did receive and become entitled to receive a piece of money, credit, allowance, check, slug, token, memorandum and other thing of value being to the County Solicitor unknown, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Florida.'

Petitioner was asked questions about conversations he had engaged in with the defendants concerning machines described in the information. He testified that he had conversations with the two named defendants and another man but that he could not say which one if either of the defendants had made certain statements to him. The record shows that such conversation as petitioner had with the defendants, or either of them, occurred more than a year before the time he was called as a witness and that he swore and maintained that he could not and did not remember with which, if either, of the defendants he had a specific conversation. In other words, he said he could not say as to any specific conversation whether such conversation was with a certain one of the defendants or with the third man. He said he had conversations with all three about the machines, but could not be certain which one of them had made any specific statement to him. He was uncontradicted in the record.

It would indeed be unthinkable to hold that a trial judge may send any man to prison for contempt of court because he says he cannot remember which of three men made statements to him on some occasion more than a year in the past merely because the judge thinks he should remember. A witness should not be coerced to swear that he remembers a thing if he does not remember it.

The following is a fair sample of petitioner's testimony, for which he was held in contempt of court:

'Q. You said one of the three men talked to you about putting the machine in? A. That is correct.

'Q. After they put the machine in there did either one of these defendants come to you and talk to you about the machine while it was in there? A. One of the three did.

'Q. But which one you can't remember now? A. I can't.

'Q. After they put the second machine in did either one of these two men come in and talk to you about that second machine? A. One of the three.

'Q. After they put the third machine in did either one of these two men come in and have a discussion with you about that third machine? A. One of the three gentlemen, yes.

'Q. Look at them; can you point out the one you had the conversation with? A. I don't believe----

'Q. Go ahead and tell us what you know. A. All I can say is that I believe I had a conversation, and I don't know definitely which one it was with, and I am not going to sit here and lie.

'Q. No, I am sure you wouldn't do that. Are you alive or are you dead now? A. I think I am alive.'

In 12 American Jurisprudence page 399, we find,

'Testimony which is obviously false or evasive is equivalent to a refusal to testify and is punishable as contempt, assuming that a refusal to testify would be so punishable. A noncommittal answer, however, as 'I could not say--possibly I did' is not a refusal to answer punishable as contempt, although it may subject the witness to an indictment for perjury.'

And further, on page 400, it is said:

'In order that perjury may constitute contempt of court, however it must appear that (1) the alleged false answers had an obstructive effect, (2) there existed judicial knowledge of the falsity of the testimony, and (3) the question was pertinent to the issue. The filing by the defendant of a sworn answer which the court subsequently finds on consideration of the testimony of witnesses, to be false does not justify his punishment as for a direct contempt. Where a witness before the grand jury makes formal answers to questions propounded to him, it may be found that he is withholding the truth. Such obstruction of justice may be punished as a contempt even if it is also perjury, where his frequent use of expressions, such as 'I don't remember' in respect of matters of which he must have some recollection, indicates a determination not to give his best recollection of facts about which he is being interrogated and shows an attitude clearly obstructive and contemptuous of judicial authority. In most of the cases in which perjury or false swearing has been held to constitute a contempt, the falseness of the statements or allegations made under oath was either admitted or so clearly shown, generally from the contemner's own statements, as to be apparently beyond question. Where, however, the falsity of the testimony is denied and is a matter merely of inference of opinion, the court should not weigh the conflicting evidence in a contempt proceeding, but should leave the alleged contemner to be punished criminally if guilty of perjury. In other words, the contemner is entitled to a jury trial if the facts are substantially disputed, and the court cannot take judicial knowledge that the testimony or allegation is false. One who has given false testimony in a court or conducted himself in an insolent and...