Wilson v. State

• Court: Florida Supreme Court
• Writing for the Court: BUFORD, Justice.
• Citation: Wilson v. State, 134 Fla. 390, 184 So. 31 (Fla. 1938)
• Decision Date: 18 October 1938
• Parties: WILSON et al. v. STATE.

184 So. 31

134 Fla. 390

WILSON et al. v. STATE.

Florida Supreme Court, Division A.

October 18, 1938

Error to Criminal Court of Record, Dade County; Ben C. Willard Judge.

Charles Wilson and Ralph Morton were convicted of unlawfully maintaining a gaming room for the purpose of gaming and gambling, and they bring error.

Reversed.

BROWN J., dissenting in part.

COUNSEL Jack Kehoe, of Miami, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for the State.

OPINION

BUFORD Justice.

Writ of error brings for review judgment of conviction under an information filed in the Criminal Court of Record in and for Dade County, Florida, as follows, to wit:

'The State of Florida vs. Charles Wilson and Ralph Morton

'Information for Operating a Gambling House.

'In the name and by authority of the State of Florida: Robt. R. Taylor, County Solicitor for the County of Dade, prosecuting for the State of Florida, in the said County, under oath, information makes that Chales Wilson and Ralph Morton of the County of Dade and State of Florida, on the 3d day of January in the year of our Lord one thousand nine hundred and thirty eight, in the County and State aforesaid, did then and there unlawfully and feloniously have, keep, exercise and maintain a gaming room for the purpose of gaming and bambling, located at what is commonly known as Britton & Morton, 196 N.W. 36 th Street, Miami, Dade County, Florida, the said defendants having directly and indirectly the charge, control and management of said gaming and gambling room, exclusively and with others, and did then and there procure, suffer and permit certain persons whose names are to the County Solicitor unknown, to play for money or other valuable thing, at a certain game of chance, towit: Betting upon result of a contest of skill between beasts, to-wit: races between horses at a place or places to the County Solicitor unknown, and a further and more particular description of same game of chance, to-wit:

'Betting upon the result of a contest of skill between beasts, towit: races between horses at a place or places to the County Solicitor unknown, 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.

'Robt. R. Taylor

'County Solicitor, Dade County, Florida.

'State of Florida, County of Dade,

'Personally appeared before me, Robert R. Taylor, County Solicitor for Dade County, Florida, who being first duly sworn, says that the allegations as set forth in the foregoing Information are based upon facts that have been sworn to as true, and which, if true, would constitute the offense therein charged.

'Robt. R. Taylor

'County Solicitor, Dade County, Florida.

'Sworn to and subscribed before me this 3rd day of January, A. D. 1937.

'W. Cecil Watson

'Clerk of the Criminal Court of Record, Dade County, Florida,

'By Leila M. Duval, Deputy Clerk.

'Seal Criminal Court of Record.'

There are a number of assignments of error which we cannot say are without merit but we shall only deal with two questions presented.

To the information the defendant Wilson filed plea in abatement in which it is alleged:

'That on the 3rd day of January, 1938, the said Charles Wilson was forcibly and against his will, taken by deputy sheriffs of Dade County, Florida, who were acting under the color of their office, as such deputy sheriffs, to the office of the County Solicitor of Dade County, Florida on the 12th floor of Dade County Court House, and that the said Charles Wilson, after having been so taken to the said County Solicitor, as aforesaid, was informed by the said Robt. R. Taylor, the duty appointed, qualified and acting County Solicitor of the Criminal Court of Record in and for Dade County, Florida, that he, the said County Solicitor, wanted to obtain from the said Charles Wilson certain information as to alleged gambling operations at the place where the said Wilson was employed and the said County Solicitor stated to the said Charles Wilson-'I am giving you a chance to turn State's evidence, if you will give us the information we seek you will not be prosecuted if not, you will be prosecuted and sent to Raiford.'

'Whereupon the said Charles Wilson fully and truthfully answered all questions propounded to him by the said Robt. R. Taylor, County Solicitor.

'The questions propounded and the answers given in connection therewith being recorded by a stenographer in the office of the said Robt. R. Taylor, County Solicitor.

'That the purpose of the inquiry and investigation conducted by the said Robt. R. Taylor as aforesaid, and the purpose and reason for propounding questions and interrogatories to the said Charles Wilson by Robt. R. Taylor the County Solicitor, as aforesaid, was to procure and obtain testimony, evidence and information preliminary to filing an information and to prosecute such persons as may be guilty of a violation of the criminal laws of Florida.

'The said Charles Wilson further relates unto the Court that relying upon the promise made to him by the County Solicitor, as aforesaid, and pursuant to the provisions of section 8311 of the Compiled General Laws of 1927, he could not refuse to answer the questions propounded upon the ground of self incrimination, and that he was, by law, required to answer said questions, and that said law granted to such person answering such questions immunity from prosecution, or from being subjected to any penalty or forfeiture on the ground of any transaction, matter or thing concerning which he may so testify or produce any evidence.

'The said Charles Wilson further gives the Court to understand and be informed that he was questioned by the said Robt. R. Taylor, aforesaid, or and concerning the subject matter contained in the body of the information filed in this cause; that he gave and disclosed to the said Robt. R. Taylor, as aforesaid, all knowledge and information that he, the said Charles Wilson, had of and concerning the subject matter of the investigation aforesaid, and that by so doing he is immune from prosecution of said offense, as provided in section 8311 of the Compiled General Laws of the State of Florida.

'Wherefore, the said Charles Wilson says that the State of Florida and the said Robt. R. Taylor, County Solicitor as aforesaid, are estopped from further prosecuting the said Charles Wilson under the information herein and that the said Charles Wilson is immune from prosecution upon said charge, under and by virtue of the provisions of the said Section 8311 of the Compiled General Laws of the State of Florida, and that prosecution on information aforesaid should be abated as to this defendant, and this defendant discharged from custody and permitted to go hence without day.'

To this plea the State, by its solicitor, filed demurrer upon three grounds. The demurrer was sustained. So the first question which we will discuss is whether or not the demurrer to the plea in abatement was properly sustained.

Section 6017, R.G.S., section 8311, C.G.L., provides as follows:

'No person shall be excused from attending and testifying, or producing any book, paper or other document before any court upon any investigation or 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 on or 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.'

By the demurrer the State contended that the plea in abatement was not sufficient to show the facts necessary to bring the defendant within the provisions of the statute above quoted. The demurrer admits as true the allegations of the plea. An investigation of crime and the taking of testimony in regard thereto by the County Solicitor is as much a court proceeding as is an investigation of crime and taking of testimony in regard thereto before a grand jury and we must hold that the allegations of the plea in abatement were sufficient, if true, to show that the accused was entitled to the protection accorded under section 8311, supra.

Aside from this, the plea in abatement alleged a contract and agreement on the part of the County Solicitor with the accused which was proposed by the County Solicitor in the following language:

'I am giving you a chance to turn State's evidence, if you will give us the information we seek you will not be prosecuted; if not, you will be prosecuted and sent to Raiford.'

And this proposition was accepted by the accused as alleged in the following language:

'The said Charles Wilson further relates unto the Court that relying upon the promise made to him by the County Solicitor as aforesaid, and pursuant to the provisions of section 8311 of the Compiled General Laws of 1927, he could not refuse to answer the questions propounded upon the ground of self incrimination, and that he was, by law, required to answer said questions, and that said law granted to such person answering such questions immunity from prosecution, or from being subjected to any penalty or forfeiture on the ground of any transaction, matter or thing concerning which he may so testify...