Opinion
April 14, 1950.
George W. Leaird, Fort Lauderdale, for petitioner.
Richard W. Ervin, Attorney General and Reeves Bowen, Assistant Attorney General, for respondent.
The petitioner was cited for contempt of court by the Circuit Court of Broward County for attempting to corrupt and influence the decision of two veniremen who had been drawn to serve at a term of court in which a criminal case entitled State of Florida v. Ira R. Giddens was to be tried. In answer to the rule to show cause issued by the Circuit Court the petitioner answered denying the charges made by the rule. After the submission of evidence on the issue, the Circuit Judge found that the allegations of the rule had been proven and substantiated by the evidence, and sentenced the petitioner to serve 60 days in the county jail.
A writ of habeas corpus to test the legality of petitioner's detention was issued by this court, and the cause is now before this court for final disposition on the writ, the return of the sheriff of Broward County setting up the judgment of contempt as the basis for petitioner's retention, and the transcript of the proceedings had and taken before the Circuit Judge as a basis for the issuance of the contempt order.
The acts constituting the alleged contempt took place out of the presence of the Court. As charged in the rule to show cause, they consisted of the following activities: On January 5, 1950 the petitioner had a conversation with one Robert M. Haskins after the said Haskins had been duly drawn as a juror to serve in the cause of State of Florida v. Ira R. Giddens, with full knowledge of the fact that the said Haskins had been drawn to serve as a juror in the cause and that the cause was to be called for trial on January 9, 1950, and thereupon "attempted to corrupt the said juror, Robert M. Haskins, by attempting to influence the decision of said juror and attempting to bias the opinion and influence the decision of such juror relating to the cause pending in the Court, and thereby corrupt, hinder and obstruct the administration of justice in the cause aforesaid in contempt of this Court and the Judges serving therein"; and on January 9, 1950 the said petitioner approached one William E. Gent after the said Gent had been duly served with a summons to appear as a juror to serve in the cause of State of Florida v. Ira R. Giddens, and knowing that the cause was to be called for trial on January 9, 1950 and thereupon "attempted to corrupt the said juror * * * by attempting to influence the decision of the said juror in said cause and with the intent to bias the opinion and influence the decision of such juror relating to the cause pending in the Court, and thereby corrupt, hinder and obstruct the administration of justice in the cause aforesaid in contempt of this Court and the Judges serving therein."
The evidence submitted to substantiate the charges made by the Rule was given by the veniremen Haskins and Gent. As to the first charge of wilful attempt to influence a venireman, Haskins testified substantially as follows:
That his name was Robert Haskins; he was served with a summons to appear as a juror for the term of Court beginning in the Circuit Court of Broward County on Monday, January 9, 1950; that on Thursday, January 5th, at about 3:00 P.M. he received a telephone call at his office from a person who said his name was "Ham" Marshall. As far as he could tell, he recognized the voice at the other end of the line as being that of Henry Marshall; he did not recall that he had ever talked to Marshall over the phone before, but was certain that he had not had a telephone conversation with Marshall since the war.
The witness testified further:
"I can't quote the conversation exactly but the general line of the conversation as I recall was that I was in a position to do a great favor for the party calling and for a friend of his, and I was asked if I would be willing to do such a favor. My reply was that I certainly hoped I could, I would be glad to do a favor if possible, I would like to know what the favor would be and I was then told that I probably didn't know it yet, but that I had been selected as a possible juror for the Circuit Court and specifically for the Giddens trial and was asked if I knew anything about this case. I said `No, I don't recall. I read about it in the paper sometime ago, but I don't know much about it', and I was told then that Mr. Giddens was a, I have forgot the exact words, but a good man, a good person and that this party was interested in seeing that he got a fair break in the case, and I was briefed a little bit about the circumstances of what had happened, I mean what Mr. Giddens was being tried for, and I was told that it was a case involving the shooting of a colored person and was asked if I would be prejudiced in any way against a colored person, or would I be willing to vote fairly and squarely and see that he got a break. That is about all I can remember about it * * *
"I was told that the prosecution would undoubtedly ask if I were a sportsman or interested in guns or firearms of any sort, and that possibly if I were interested in such things that I would not be acceptable to the prosecution * * *
"It was suggested that I answer such a question with the reply that I was not interested in guns and didn't belong to any sportsman's association or club.
"Q. Now, do you recall what he told you as to the facts of this case, did he refer to the deceased, the negro, in any of this conversation? A. No, there was no mention made of names at all, and in fact I didn't know either party, don't know them today, never heard of either one of them before other than what we all read in the papers at the time of the first trial * * * I believe he stated that the shooting occurred as a result of an argument with this colored person and that the colored person was a `poacher', which didn't mean very much to me. I didn't know exactly what a poacher was, I mean in which way he was using the word at least. I think that was the only mention that was made in that connection.
"Q. Did he say anything to you as to whether or not the negro was `no good' or was — A. No, I don't believe so * * *
"Q. * * * was anything said in the conversation as an inducement to you to answer the questions in the manner that had been stated? A. No. There was no inducement, any specific offer or anything other than just as a friend, as a — something that would make me very popular with the person in that way, I mean there was no specific inducement * * * Well, the question was put to me to start with, as a friend I was being, that is why he phoned me to start with and that for friendship's sake, and that I would certainly gain a close friend if I could be of any help to them, and that is about all that was said along that line.
"Q. Now, in the conversation did he express to you his wishes concerning the outcome of this trial? A. Not specifically, no sir * * * Well, I mean it was obvious to me that the intent of the parties was that he was undoubtedly a good friend of the defendant, and that he would hope to see him go free, but he didn't, there was no definite request made as to what I should do about the trial.
"Q. Now was there any explanation given to you as to why he gave you this background? A. I think I probably asked for that, I didn't ask for it, I was asked the question if I knew anything about the case, and I said no, nothing specific, I don't know any of the parties, just what I read in the newspaper sometime ago and then with that I was given just a short brief on what had happened, how the shooting took place.
"Q. Was there any reason given to you as to why this party called? A. None specifically other than obviously it was in connection with this case and that the reason for the call was to ask me to do a favor."
In opposition to the testimony given by Haskins the petitioner, Marshall, gave testimony in which he flatly denied ever having had the alleged conversation to which Haskins referred in his testimony. On cross examination the petitioner was asked whether as a member of the Broward Rod Gun Club he had ever contributed or voted to contribute any money for the defense of Ira R. Giddens. To this question the petitioner replied that not only had he not contributed or voted to contribute any money for the defense of Giddens but had voted against making such a contribution.
The testimony of Marshall that he had not had a telephone conversation with Haskins was corroborated by a witness, Harvey Bridge, who stated under oath that he was in Marshall's office on the day the conversation was supposed to have taken place, from approximately 1:30 P.M. to 4:10 P.M., that he visited continuously with Marshall while there, and that Marshall never made any outgoing calls to Haskins, or to anyone else, during the period of the visit.
As to the charge against Marshall of attempting to influence the prospective juror, Gent, the latter testified substantially as follows:
That his name was William E. Gent; that he was present in the court house on the morning of January 9, 1950 in answer to a jury summons. He had never been in the court house before; that he arrived at the court house about 9:15 A.M. and walked upstairs to the hall outside the court room; there was a large crowd standing in the hall and he assumed that everyone there was called for jury duty. While in the hall and before going into the court room he had a conversation with Mr. Henry Marshall.
In respect to this conversation the witness stated:
"I believe I asked him, `Is this where I belong?' I don't know whether he answered or not, and he informed me that the defendant `was a good boy', `he had done no wrong,' `that the previous trial had been eleven to one for acquittal, and the one juror that had hung out, held out, was a Communist.' I believe that was the entire conversation * * *
"Q. What was the ending of your conversation? A. I don't believe there was any ending. I think he just walked off."
In answer to the testimony given by the witness Gent, the petitioner testified that he had gone to the Broward County Court house on the morning of January 9, 1950 for the purpose of purchasing license tags for his trucks; that there was such a crowd in the court house that he put off purchasing his tags on that day; that he remembered that it was the day of the Giddens trial and so went upstairs toward the court room to see what was going on; that when he reached the second-story landing, the witness Gent, whom petitioner did not know, approached him with the greeting "Good morning", and then said, "Looks like a pretty big trial, doesn't it * * * How did the last trial come out?"
The remainder of Marshall's testimony on the point is shown in the record, as follows:
"And I said — As I recall I hesitated because I didn't want to state definitely, I said `As I recall, I believe it was eleven to one for acquittal.' He said, `Is that right?' I said, `Yes, they must have had some sort of Bolsehvik or something on it for it to be that close as I recall it.'
"Q. Did you say anything else to him? A. Nothing else, I didn't think he was a juryman because he was standing next to the stairway, or I wouldn't even have said that to him. I didn't dream he was a juror. There were some other lawyers and people in the hallway, most of the people were inside. He was standing there by himself. It never even occurred to me that he was a juryman. I never said nothing that he could construe that I was trying to influence him * * *
"Q. Have you ever been a juror in this county? A. Yes, sir.
"Q. Do you know what the usual habit of the jurors is, where they usally get together? A. Well, when I was called on a jury on a manslaughter case I came in here [the courtroom] and sat down.
"Q. You never knew of the jurors to congregate out in the hall previous to the convening of court? A. Well, they sometimes stand out there and smoke."
We have presented, in substance, all the material evidence produced at the trial, because the single question before us is whether the evidence was sufficient to sustain the contempt order entered by the Circuit Judge.
Though it is the rule of this jurisdiction that in a contempt proceeding the determination of the facts and inferences to be drawn therefrom will generally be left to the decision of the trial judge, whose conclusion as to the acts done and as to their contemptuous character or effect, will not be lightly disturbed by this court on habeas corpus, Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185, the rule is subject to the principle, that where the acts constituting the alleged contempt take place out of the presence of the Court and relate to improper proposals to influence the actions of jurors or other court officials in the performance of their official duties, such proposals must be proven in the same manner and to the same degree of certainty as other criminal charges are proven if a valid judgment of contempt is to rest on them. See Stokes v. Scott, 138 Fla. 235, 189 So. 272; Williams v. Scott, 138 Fla. 239, 189 So. 272.
As stated in Stokes v. Scott, supra [ 138 Fla. 235, 189 So. 273], "It may be laid down as a general rule that the credibility or the weight of conflicting testimony will not be considered or reviewed in habeas corpus from a judgment of contempt based on improper proposals to a * * * juror but where, as in this case, the proceeding is of the nature of criminal proceedings and the evidence does not point conclusively to the charge made, emanates from a sole witness, and was not corroborated or convincing, and was of such a nature as to cast suspicion on said witness as guilty of improper conduct affecting his duty as a * * * juror and his evidence was flatly denied and the denial corroborated, and the record as a whole does not clearly reveal a criminal intent, the court may on habeas corpus consider the legal sufficiency of the evidence to sustain the judgment, there being no other adequate remedy, and may make such order in the premises as will properly sustain the integrity of the Court and secure to petitioner his right of due process and equal protection of the law as required by Section Four of the Declaration of Rights."
We are of the considered opinion that the evidence in the case at bar, when measured by the rule laid down in Stokes v. Scott, supra, fails to meet the standard of proof required for conviction in cases involving constructive contempt. The uncorroborated testimony of the state witness Haskins with respect to a telephone conversation with Marshall was flatly denied by the latter; and Marshall's testimony was corroborated by Harvey Bridge who, so far as the evidence shows, was an entirely disinterested witness in the matter. As to Gent's version of what transpired at the county court house on the morning he appeared there as a member of the venire from which would be selected a jury panel to try the case of State v. Giddens, it cannot be said that this testimony (without consideration of the countervailing testimony given by Marshall) proved the issue involved "to the same degree of certainty as other criminal charges are proven if a valid judgment of contempt is to rest on them". Stokes v. Scott, supra.
We conclude, therefore, that the petitioner should be remanded to the custody of the sheriff with directions to the trial court to discharge him unless evidence legally sufficient to support the charges, or either of them, is duly adduced.
It is so ordered.
TERRELL, CHAPMAN, HOBSON and ROBERTS, JJ., concur.
ADAMS, C.J., and THOMAS, J., dissent.