State ex rel. Mitchell v. Kelly

• Decision Date: 19 March 1954
• Citation: 71 So.2d 887
• Parties: STATE ex rel. MITCHELL v. KELLY.
• Court: Florida Supreme Court

Page 887

71 So.2d 887

STATE ex rel. MITCHELL v. KELLY.

Supreme Court of Florida, En Banc.

March 19, 1954.

Rehearing Denied May 4, 1954.

Hubbard & Everett, Miami, Turnbull & Pepper, Tallahassee, for relator.

Richard W. Ervin, Atty. Gen., Mark R. Hawes, Asst. Atty. Gen., for respondent.

DREW, Justice.

January 16, 1953, E. R. Mitchell, the relator, Dave Marcus and others were informed against in Dade County for conspiracy to violate the lottery laws of this State. Dave Marcus was named the principal co-conspirator in the information.

While this information was pending, relator was subpoenaed before the Dade County, Florida Grand Jury in connection with '* * * an investigation into gambling activities in Dade County of Dave Marcus, both as to conspiracy to violate the gambling laws, bookmaking, a charge of bookmaking, and a charge of conducting a lottery.' To each of eleven questions ¹ there propounded by the Grand Jury or under its direction, the relator declined to answer on grounds, 'that it may tend to incriminate me in the State and Federal Courts.' Thereupon, in appropriate proceedings, the Circuit Court of Dade County adjudged relator in contempt for failure to answer the propounded questions and sentenced him to six months in jail. Supersedeas was denied by the Circuit Court, whereupon relator filed in this Court his petition for writ of habeas corpus, setting out the above facts. Respondent filed a return and motion to quash.

In view of the importance of this question and the discussion of the subject which we deem necessary and advisable, we here interrupt the orderly course of this opinion for a brief review of the historical background of the privilege against self-incrimination and of statutes granting immunity to certain persons when their evidence is coerced.

Privilege against self-incrimination has its roots embedded in events occurring as early as the Thirteenth Century. And in England before the end of the Seventeenth Century none of the courts denied the rule that no man should be compelled to accuse himself, and this privilege by then also was extended to include a witness as well as a party charged. This privilege is a sacred part of the Federal Constitution and of the Constitution of every state except Iowa and New Jersey. See 8 Wigmore, Evidence (3d ed. 1940), Sections 2250-2252 passim.

It should be noted that ordinarily the privilege does not protect from the revealing of facts concerning a civil liability or mere infamy but does extend to forfeiture and penal liability. And the protection provided applies to all types of proceedings wherein testimony is given and applies alike to a witness as well as a party who is accused. See 8 Wigmore, Evidence (3d ed. 1940) Sections 2255-2257 passim.

Immunity statutes have been in use for more than two centuries for the investigation of numerous types of offenses but particularly those involving a concert of action by the nature of which, usually, persons having the most information are themselves involved in the offense itself. Examples of such offenses are violations of criminal laws relating to political activities, intoxicating liquors, gaming, frauds, and monopolies. These and similar offenses which require efficacious investigation by any lawful means provide the principal field of operation. And statutes of this nature are now widely used. See 8 Wigmore, Evidence (3d ed. 1940) Section 2281 passim.

In Florida the privilege is embedded in the Constitution in Section 12 of the Declaration of Rights, F.S.A., which in part provides: 'No person shall be * * * compelled in any criminal case to be a witness against himself'. And in the statutory law of Florida there is a long history of 'immunity statutes'. ²

The Florida Statute involved in the main case was first enacted in 1905 as Chapter 5400. The title to that Act reads:

'An Act to Provide for the Privileges of Witnesses in Investigations and Prosecutions for the Violation of the Statutes Against Bribery, Gaming and Gambling and for Violation of the Statutes Against the Illegal Sale of Spirituous, Vinous or Malt Liquors.'

The present Act, Section 932.29, Florida Statutes, 1951, F.S.A., reads:

'No person shall be excused from attending and testifying, or producing any book, paper or other document before any court upon any investigation, proceeding or trial, for a violation of any of the statutes of this state against bribery, burglary, larceny, gaming or gambling, or of any of the statutes against the illegal sale of spirituous, vinous or malt liquors, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.'

We now again turn our attention to the contentions currently before us. The refusal of relator to answer was upon dual grounds. We consider first the ground that relator could remain silent because of possible self-incrimination in the State Courts. Necessary to determination thereof is consideration of the effect of Section 932.29, Florida Statutes 1951, F.S.A., supra.

In contending that he was not required to answer the questions propounded by reason of self-incrimination under state law, relator asserts that the information sought was privileged under the Constitution of Florida, Declaration of Rights, Section 12, supra. No question is raised as to the validity of the statute, but it is urged that it has no application to the situation here involved. Relator claims this is so because the investigation of the grand jury was, among other things, into the subject of conspiracy to violate the gambling laws and points out that 'conspiracy' is not mentioned in this statute. Therefore, he claims, that statute has no applicability and in support of this position he cites Johns v. State, 157 Fla. 721, 27 So.2d 75; State ex rel. Benemovsky v. Sullivan, Fla., 37 So.2d 907; People v. Rockola, 339 Ill. 474, 171 N.E. 559, 69 A.L.R. 852; Doyle v. Hofstader, 257 N.Y. 244, 177 N.E. 489, 87 A.L.R. 418.

The State contends that the statute does apply to the situation here involved and being applicable rendered relator immune to 'any crime which might be disclosed' by his testimony so given, which immunity necessarily included immunity for conspiracy to violate the gambling laws. The state relies principally on State v. Hancock, 146 Fla. 693, 1 So.2d 609.

We first consider the claims of relator.

In Johns v. State, supra, the defendant was charged with a violation of the lottery laws. He moved to quash the information on grounds he was immune from prosecution under Section 932.29 by reason of having previously testified concerning the lottery offense with which he was charged. The testimony so relied upon was given on cross-examination by defendant and over his objection at a preliminary hearing inquiring into the charge of first degree murder against him. Following his conviction on the lottery offense, defendant on appeal challenged the correctness of denial of the motion to quash. In affirming the conviction, we noted that the proceeding at which defendant was required to testify was 'not the violation of any of the statutes of this State against bribery, burglary, larceny, gaming or gambling or any of the statutes against the illegal sale of spirituous, vinous or malt liquors' [157 Fla. 721, 27 So.2d 76] and therefore the testimony so given 'did not bring the accused within the purview of the immunity afforded by the statute, supra.'

In the case of State ex rel. Benemovsky v. Sullivan, supra, the county solicitor was conducting an investigation into criminal Communism. To questions propounded about that subject, the relator invoked her constitutional privilege against self-incrimination but was held in contempt for failure to answer. In the subsequent habeas corpus proceedings, the respondent contended that Section 932.29 was applicable. We held the contempt order invalid and pointed out that there was no language in the terms of the statute that would authorize its application to an investigation of criminal Communism.

The case of People v. Rockola, supra, involved the trial of one Collins charged with conspiracy to bribe. A statute empowered the court under certain conditions to grant immunity to a witness at the trial of any other person charged with the crime of bribery. At the trial the appellant was called as a witness against the defendant. He refused, notwithstanding a court order granting him immunity, to answer questions pertaining to the conspiracy charge against Collins, and for that he was held in contempt of court. On appeal the conviction of contempt was reversed, the court stating that the statutory power to grant immunity applied only when the offense being tried or under investigation was one mentioned in the statute, which pertained only to the crime of bribery, and so the trial court had no authority to enter its order where the offense on trial was merely a charge of conspiracy to commit bribery, not being an offense mentioned in the statute.

The Johns and Benemovsky cases simply hold that where a statute provides immunity to a witness testifying at an investigation into certain specified offenses, the statute has no application where the subject matter of the investigation is only into an offense not specified in the statute. The case of People v. Rockola, supra, holds that where a statute provides authority for witness immunity at an investigation or trial of a certain offense, the statute has no application to a situation where the trial is for the lesser crime of conspiracy to commit that offense....