GLUCK v. STATE, 62 So. 2d 71

MATHEWS, Justice. The appellant was charged with rape and convicted of the offense of assault with intent to commit rape.

In his opening statement to the jury the Assistant State Attorney stated to them, “We will also present evidence of a former similar act” and referred to the appellant as “a man that had never been employed in five years.” At the conclusion of the statement by the Assistant State Attorney, the appellant objected to such statements, called them to the court’s attention and made a motion for a mistrial, which was denied. ■There was no question about the defendant’s identity, that he knew the woman and that he had had sexual intercourse with her at the time and place mentioned.

The defense was that the act was with her consent. During the course of the trial the State, over the objection of the appellant, introduced evidence by a woman of an alleged offense committed some 3 or 4 years prior to the alleged act for which appellant was being prosecuted. She related all of the alleged details of the offense to the same extent as if the appellant was being tried for that offense.

In the course of the tidal the Assistant State Attorney referred to the fact that the mother and wife of the appellant was “sticking to him” and stated: “I would not doubt that they will stick by as long as they are able. This is one admirable trait of the people of this religion. No matter what the husband does, he can do anything without any complaint by the wife * * Near the conclusion of his address to the jury the Assistant State Attorney hurled epithets at the accused so foul, vile, abusive and obscene as to be unquotable in this opinion. The following took place after the epithets were used: “Mr.

Carr: We would like the Court to caution and admonish the State’s Attorney that such conduct is highly irregular * * * that type of language. “Mr. Mincer: That seems to be the facts in this case. “The Court: It will be denied.” The above quotation of what took place, not only shows a determination on the part of the Assistant State Attorney to have his highly prejudicial remarks remain imbedded in the minds of the jury, but also, that the Court approved such remarks. In the case of Simmons v.

State, 139 Fla. 645, 190 So. 756, 758, this Court used the following language: “It is well settled that statements or intimations 'by the prosecuting attorney that accused has committed other crimes besides that for which he is now on trial constitutes error.” In the case of Huggins v. State, 129 Fla. 329, 176 So. 154, 155, error was alleged on the ground that the State Attorney in his argument to the jury repeatedly referred to the defendants as Negroes and made many remarks derogatory to the Negro race and highly prejudicial.

The transcript of the record did not show that such remarks were made by the State Attorney. However, this Court said: “If the transcript of the record showed by the authenticated bill of exceptions that the state’s attorney indulged in the argument attributed to him in this ground of the motion a new trial would be awarded.” In the case of Stewart v. State, Fla., 51 So.2d 494, in an opinion by Mr.

Justice Terrell, this Court said: “We have not only held that it is the duty of counsel to refrain from inflammatory and abusive argument but that it is the duty of the trial court on his own motion to restrain and rebuke counsel from indulging in such argument.” The appellant was presumed to be innocent until he was found guilty as a result of a fair and impartial trial. He was charged with a particular crime and that alone. Neither his religion, character, alleged prior offense, nor occupation were proper issues in the case.

The conduct, attitude and remarks, which were seasonably called to the attention of the Court and objected to, were highly prejudicial and even if not calculated to, undoubtedly had an influence upon the jury in the rendition of their verdict. State Attorneys and their assistants are quasi judicial officers of the court. It is their duty to see that a defendant gets a fair and impartial trial.

When such matters, as herein set forth, are called to its attention, it is the duty of the Court to reprimand the prosecuting officer, sustain the objections and, if possible, make it clear to the jury that the Court does not condone the conduct of the prosecuting-officer, and eradicate the same from the minds of the jury. If that cannot be done, a new trial, or a mistrial, should be granted. See Deas v. State, 119 Fla. 839, 161 So. 729. The record in this case discloses that the appellant did not receive a fair and impaf^ tial trial.

Reversed, with directions to set aside th^ judgment, sentence and order denying a new trial, and to grant the motion for a new trial. THOMAS, MATHEWS and DREW, J’J., concur. TERRELL, J., concurring specially. SEBRING, C. J., and ROBERTS, J, dissent.