State v. Fabian, 152

• Decision Date: 20 November 1957
• Docket Number: No. 152,152
• Citation: 97 So.2d 178
• Parties: STATE of Florida, Appellant, v. George FABIAN, Appellee.
• Court: Florida District Court of Appeals

Page 178

97 So.2d 178

STATE of Florida, Appellant, v. George FABIAN, Appellee.

No. 152.

District Court of Appeal of Florida, Second District.

Nov. 20, 1957.

Richard W. Ervin, Atty. Gen., Jos. P. Manners and Richard J. Brooks, Asst. Attys. Gen., for appellant.

Branch & Goff, Talton A. Branch, Tampa, for appellee.

ALLEN, Judge.

This is an appeal from an order of the Judge of the Criminal Court of Record in and for Hillsborough County, quashing an information which charged George Fabian with perjury. The State appeals, the parties being referred to herein as they stood before the trial court.

The information filed in the cause below read as follows:

'Case No. 44241

'In The Criminal Court of Record of The County of Hillsborough and State of Florida.

'The 6th day of July, June Term, 1956.

'The State of Florida

v.

George Fabian

Perjury

'In the Name and By The Authority of The State of Florida:

'Paul B. Johnson, County Solicitor for the County of Hillsborough, State of Florida, under oath, Information makes: That on the 9th day of January, A. D. 1956, there was then and there pending in the Criminal Court of Record of the County of Hillsborough and State of Florida, a certain cause, wherein the State of Florida was plaintiff, prosecuting, and one George Fabian was defendant. That the charge against the said George Fabian was four (4) separate counts of violation of the lottery laws of the State of Florida. That subsequent to the filing of the Information in which the said George Fabian was charged with violating the lottery laws of the State of Florida, the said defendant did file in said cause an amended motion to quash search warrant and suppress evidence. That said amended motion to quash search warrant and suppress evidence came on to be heard and was heard on said date, to-wit: the 9th day of January, 1956, before the Honorable L. A. Grayson, Judge of the Criminal Court of Record of the County of Hillsborough and State of Florida; That the said Criminal Court of Record and the Honorable L. A. Grayson, Judge of said Court, then and there had jurisdiction to hear and determine said amended motion to quash search warrant and suppress evidence. That during the hearing on said motion, the said George Fabian then and there became and was a witness in his own behalf in said cause, and was then and there duly sworn according to law by and before the Honorable Herbert E. McLeod, Deputy Clerk of the said Criminal Court of Record of the County of Hillsborough and State of Florida, to depose and speak the truth in said cause, the said Deputy Clerk having then and there lawful and competent authority to administer such oath. That thereupon the said George Fabian, being so sworn as aforesaid to speak the truth as aforesaid, wickedly, contriving and intending to cause and procure the said Court to grant his said amended motion to quash search warrant and suppress evidence, he, the said George Fabian, did then and there wilfully, falsely, wickedly, knowingly, maliciously and corruptly and by his own consent upon his oath aforesaid, in the County and State aforesaid, and on the day aforesaid, depose, swear and give evidence before the said Court and said Judge as aforesaid in substance, tenor and effect, among other things, as follows, to-wit:

'That he, the said defendant, George Fabian, prior to his arrest for the said lottery law violations, and on or about November 1, 1955, had a definite understanding with Rudolph Mora for said defendant to rent from Rudolph and Matilda Mora the premises located at 1860 Twenty-fourth Avenue, Tampa, Florida, which was then and there being occupied as a home by the said Rudolph and Matilda Mora; that he, the said George Fabian, was to use the said premises during the day time and was to pay the said Rudolph and Matilda Mora the sum of Twenty Dollars ($20) per week for the use thereof;

'Whereas, in truth and in fact the said defendant, George Fabian did not on said date or at any time have a definite understanding or, in fact, any understanding with the said Rudolph and Matilda Mora or either of them to rent or use said premises located at 1860 Twenty-fourth Avenue, Tampa, Florida, as aforesaid;

'That the matters aforesaid so wilfully, falsely, wickedly, knowingly, maliciously and corruptly sworn into substance, tenor and effect by the said George Fabian were then and there material to the issues in the hearing on said motion and the same were false and untrue and the said George Fabian well knew that the said testimony was false and untrue at the time he, the said George Fabian, so testified. So the County Solicitor aforesaid, upon his oath aforesaid, does say that the said George Fabian, at the time and in the County and State aforesaid, did commit the crime of perjury against the peace and dignity of the State of Florida, and contrary to the statute in such cases made and provided.'

The defendant filed a motion to quash on the ground, among several others, that the information...