State, Ex Rel. v. Coleman , 137 Fla. 80 ( 1938 )

This case is here on writ of error to an order made and entered by the Circuit Court of Dade County, Florida, denying the petition a writ of habeas corpus. The petition for the writ alleged that Arthur E. Hemmings, petitioner, had been informed against by a grand jury of Dade County, Florida, placed upon trial and convicted in the Criminal Court of Record of Dade County of the crime of perjury and sentenced to the state penitentiary for three years; that the facts constituting the crime grew out of testimony given by petitioner before a grand jury of Dade County, Florida, pursuant to a subpoena served upon him and requiring him to appear and testify before it. Petitioner by the State Attorney was warned prior to giving testimony that anything he might testify to would be used in evidence against him. The petitioner was then examined and cross-examined as a witness before the grand jury by several members of the grand jury and the State Attorney as to larceny and embezzlement of property of the Dade County School Board.

Prior to the petitioner's appearance as a witness before the grand jury there was then before it sufficient evidence to support indictments for the crimes of grand larceny, embezzlement and obtaining money under false pretenses, and as to this fact the petitioner was not warned or advised; neither was it made known to him as to the sufficiency of the evidence then before the grand jury, and petitioner was without aid of counsel at said time. The grand jury, after the petitioner had appeared and testified before it, returned indictments against petitioner for the crimes of grand larceny, embezzlement, obtaining money under false pretenses and for perjury committed in the presence of or before the grand jury.

The petitioner further represented that he was convicted of the crime of perjury contrary to Section 8311 C.G.L., in that the petitioner did not waive immunity as a witness when before the grand jury, but did appear pursuant to a subpoena served upon him, and the testimony as given by him before it was not voluntary and that he was at said time immune from prosecution and not subject to the penalty inflicted upon him under the laws of the State of Florida, and that the State of Florida was estopped, as a matter of law, from prosecuting the petitioner for perjury. It appears that the State Attorney, during the progress of the trial of the charge of perjury, testified that petitioner had been fully warned by him as to his constitutional rights when he appeared as a witness and prior to his testifying before the grand jury.

Pertinent allegations of the petition are, viz.:

"That said grand jury had before it on April 9 and 10, 1937, a large number of witnesses who testified that this Petitioner, Hemmings, had taken large amounts of material and money, the property of the School Board, without the permission of the School Board, and used said property and money in the building of a house for the said Arthur E. Hemmings; and the said grand jury, so having such evidence before it, did cause the said Arthur E. Hemmings to be duly and regularly brought before it by subpoena, the said Arthur E. Hemmings was then and there duly and lawfully sworn to speak the truth before such investigating body; that the State Attorney in charge of said Grand Jury, did warn the said Petitioner that anything he might testify to would be used in evidence against him, and that after said warning, the said Hemmings was examined and cross examined by several members of the grand jury and by the said State Attorney, as to the larceny, embezzlement, and obtaining of Dade County School Board property by the said Arthur E. Hemmings, and that as to such matters upon which he, the said Arthur E. Hemmings, was being interrogated, the said grand jury, prior to the said interrogation of said Arthur E. Hemmings, had evidence sufficient to return an indictment against the said Arthur E. Hemmings for embezzlement, obtaining money under false pretenses, and grand larceny; and that neither this said grand jury, nor any member of the said grand jury, nor the State Attorney thereof, warned the petitioner, or explained to said Petitioner, that they had sufficient evidence against him to return an indictment thereon against him, but, without the aid of friend or counsel, they examined and cross examined said Arthur E. Hemmings, and he, the said Arthur E. Hemmings, so the grand jury thereafter in its indictment alleged, did then and there, in the presence of said grand jury, commit the crime of perjury; that after the said Arthur E. Hemmings had testified before said grand jury and been excused, the said grand jury did then and there return indictments against the said Arthur E. Hemmings for obtaining money under false pretences, for grand larceny, and for embezzlement, and in addition thereto did return an indictment against the said Arthur E. Hemmings for perjury committed in the presence of said grand jury.

"That thereafter the County Solicitor in and for the County of Dade, State of Florida, in the Criminal Court of Record, in and for said County, did file an information for each of said crimes, based on said indictments, and on the 7th day of January, 1938, in the Criminal Court of Record in and for Dade County, Florida, the said Arthur E. Hemmings was tried and convicted of the crime of perjury, and sentenced by the Court to three years in the State Penitentiary."

It is contended that the information filed in the Criminal Court of Record of Dade County, Florida, charging the petitioner with the crime of perjury while a witness before the grand jury was void ab initio and contrary to Section 8311 C.G.L., because the petitioner appeared before the grand jury in obedience to a subpoena served upon him and gave testimony about the loss of property owned by the School Board of Dade County, Florida, and there was then existing before the grand jury sufficient evidence to support informations of embezzlement, grand larceny, and obtaining money under false pretenses against the petitioner and the grand jury failed so to advise him and for said reason he was immune from the prosecution for perjury.

This Court has construed Section 8311 C.G.L. in Ingram v. Prescott, 111 Fla. 320, 149 So. 369, and Wilson v. State,134 Fla. 390, 184 So. 31. It cannot be questioned that a grand jury has the right to summon or bring persons before it for the purpose of giving testimony on matters under investigation. The petitioner here appeared before the grand jury in obedience to a subpoena when the grand jury was investigating the larceny, embezzlement and loss of property owned by the School Board of Dade County. It is true that sufficient testimony was then before the grand jury to support informations for violation of the criminal laws of Florida against the petitioner in connection with this property. The State Attorney testified that the petitioner was advised of his constitutional rights while before the grand jury and prior to the time that he gave the (alleged) false testimony. It is true that a person in a criminal case cannot be compelled to be a witness against himself and this rule applies to witnesses summoned before a grand jury. This rule does not apply, however, where the accused testified voluntarily or waives his privilege. It has been held that it is no violation of the constitutional rights of a person accused to compel him by subpoena to appear before a grand jury, to administer an oath to him and allow him to testify to incriminating matters against himself, when he makes no objections to testifying on account of privilege. See 28 C.J. 810, par. 108; 12 R.C.L. 1036-37, par. 21; Perlman v. United States, 247 U.S. 7, 38 Sup. Ct. 417, 62 L. Ed. 950; Hale v. Henkel, 201 U.S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652; Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 28 Sup. Ct. 178,52 L. Ed. 327.

The record shows, as testified to by the State Attorney, that the petitioner was advised that the grand jury would like to hear any explanation of the irregularities in connection with the property of the School Board if he cared to make any explanation. He was advised that he did not have to testify and had a right to refuse to answer any incriminating questions, and if he testified he would have to do so freely and voluntarily and that he would not be compelled to testify at all if he did not want to. The petitioner answered and said that he would be glad for the privilege and opportunity of making the explanations if the grand jury thought they were irregular. The proceeding before the grand jury then developed upon which the present conviction was based. We think the petitioner waived his constitutional rights and there was no error in the order of the court denying the writ. The order appealed from is hereby affirmed. The original opinion entered in this cause in so far as it conflicts with this opinion, is hereby altered, modified and overruled. It is so ordered.

TERRELL, C.J., and WHITFIELD and BROWN, J.J., concur.

BUFORD, J., adheres to original opinion.

THOMAS J., concurs in conclusion.