State Ex Rel. Marshall v. Petteway

• Decision Date: 03 December 1935
• Citation: 164 So. 872,121 Fla. 822
• Parties: STATE ex rel. MARSHALL v. PETTEWAY.
• Court: Florida Supreme Court

164 So. 872

121 Fla. 822

STATE ex rel. MARSHALL v. PETTEWAY.

Florida Supreme Court

December 3, 1935

Rehearing Denied Jan. 10, 1936.

En Banc.

Original prohibition proceeding by the State, on the relation of John Marshall, against W. Raleigh Petteway, as judge of the criminal court of record of Hillsborough county, Fla.

Writ of prohibition granted, with directions.

BROWN J., dissenting.

COUNSEL Whitaker Brothers and Charles F. Blake, all of Tampa, for petitioner.

C. Jay Hardee, of Tampa, for respondent.

OPINION

TERRELL Justice.

Petitioner was, on October 5, 1935, informed against in the criminal court of record of Hillsborough county for falsifying a public record, to wit, corruptly placing illegal names on the registration book of election district No. 3 of the city of Tampa, contrary to section 5357, Rev.Gen.St. 1920, section 7492, Comp.Gen.Laws 1927.

To that information petitioner, as defendant, filed pleas in bar alleging in substance that the county solicitor of Hillsborough county did in August, 1935, conduct an investigation into the legality of the registration of electors for the municipal primary election to be held as required by law in the city of Tampa, September 3, 1935, and particularly into the legality of the registration of electors for election district No. 3 of said city, that during said investigation petitioner was compelled to attend and testify before the county solicitor, that petitioner was sworn to testify by the county solicitor and did testify concerning the charges embraced in the information filed against him October 5, 1935, that petitioner in fact testified before the county solicitor with reference to said alleged offense, and that by reason of giving said testimony he is not liable to presentment by information nor to prosecution or punishment therefor

The county solicitor demurred to the plea of defendant on the ground (1) that it did not state facts that would constitute a bar to the information, (2) that said plea shows on its face that petitioner claims immunity from prosecution by reason of section 5917, Rev.Gen.St. 1920, section 8181 Comp.Gen.Laws 1927, relating to primary elections, while the information shows on its face that it was filed under section 7492, Comp.Gen.Laws 1927, relating to the falsification of public records and has no relation to primary elections, and (3) the plea is devoid of any showing that petitioner claimed his immunity prior to or at the time he testified.

The trial court sustained the county solicitor's demurrer to these pleas, a date was set for trial when petitioner applied to this court for writ of prohibition to quash the information and discharge the petitioner. A rule to show cause and a stay order were granted, to which a demurrer and a return were entered so the issues thus raised are now before us for final disposition.

Numerous questions are urged for solution, but stripped of all dross the pith of the whole proposition is comprehended in the question of whether or not the fact that petitioner was called and required to testify before the county solicitor in the proceeding concerning the charges embraced in the information had the effect of immunizing him from prosecution for the charge of corruptly placing illegal names on the registration book of election district No. 3 of the city of Tampa.

Petitioner contends that this question should be answered in the affirmative and relies on section 8181, Comp.Gen.Laws 1927 to support his contention, said section being as follows:

'Any person offending against any provision of the primary election law of this State is a competent witness against any other person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding or lawful investigation or judicial proceeding, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying shall not thereafter be liable to indictment or presentment by information, nor to prosecution or punishment for the offense with reference to which his testimony was given, and may plead or prove the giving of testimony accordingly in bar of such indictment, information or prosecution.'

Petitioner also relies on section 363, Rev.Gen.St. 1920, section 420, Comp.Gen.Laws 1927, relating to primary elections in municipalities, the effect of which is to make the primary election law for nominating candidates for state and county offices applicable to the nomination of candidates for municipal offices in so far as they can be made to apply.

The registration of electors is a part of the primary election machinery and is governed by the primary election law. Section 420, Comp.Gen.Laws 1927, when applicable, has the effect of regulating municipal primaries under the state and county primary election laws. Section 8181, Comp.Gen.Laws 1927, was originally section 61 of chapter 6469, Acts of 1913, and applied only to that act, but in 1919 it was reincorporated as section 5917, Rev.Gen.St. 1920, and made applicable to all provisions of the primary election law.

Casual inspection discloses that the purpose of section 8181 Comp.Gen.Laws 1927, was to offer a gratuity or inducement to those guilty of violating the primary election laws to give testimony against others so offending, such inducement being in the nature of immunity from indictment, presentment, prosecution, or...