THOMAS, Justice.
The appellant was adjudged guilty of criminal contempt and sentenced to pay a fine and serve ten days in jail.
By Chapter 25765, Laws of Florida, Special Acts of 1949, a "Special Grand Jury Fund" was created in Dade County to be used, generally, for the investigation of crime and the enforcement of the criminal laws, and to those ends the grand jury was authorized to "* * * employ special investigators and special legal counsel * * *." (Italics ours.) Mr. Robert H. Givens was chosen as such counsel, and in that capacity proceeded to conduct examinations of witnesses before the grand jury. Apparently his authority derived solely from employment by that body.
The appellant was subpoenaed as a witness, and upon being asked questions by Mr. Givens, declined to answer on the ground that by doing so he would be incriminated. Thereupon Mr. Givens, as special counsel, filed an affidavit praying for a rule nisi requiring the appellant to show cause why he should not be adjudged in contempt for refusal to give his answers. The rule nisi issued and the judgment eventuated.
Without going into the nature of the questions propounded to the appellant or the merit of his objection that they were incriminating, we shall proceed to the point raised squarely by him in his reply to the rule, that is, whether there was any authority in Mr. Givens to ask them in the first place. Allied with this is the question of the authority of special counsel to instigate the contempt proceeding when replies were not forthcoming.
It is the law of Florida that "No person shall be present at the sessions of the grand jury except the witness under examination, the prosecuting attorney, and the interpreter, if any." Section 905.17, Florida Statutes 1949, and F.S.A. Obviously Mr. Givens could have been but one of these — prosecuting attorney — and if he was not there in that capacity he was not properly there at all.
We think the opinion of this court in Sullivan v. Leatherman, Fla., 48 So.2d 836, 839, determines the fundamental question now before us. We held in that case that Chapter 25765, supra, did not relieve the state attorney of his duties or responsibilities or establish another inquisitorial body out of the grand jury and its special counsel. More especially we decided that such an interpretation of the act would "* * * vest sovereign power in private citizens with carte blanche to go out and prosecute whom they please." The italics are furnished for reasons we shall presently give.
We pointed out in that opinion that the state attorney was elected by, and was responsible to, the people and that an indictment signed by another was void.
Parenthetically, all members of the court participating agreed to the opinion so far as that phase of the controversy was concerned. The writer confined his concurrence to that aspect because of the belief that if the indictment was wholly ineffective for want of the state attorney's signaure, there was no occasion to discuss its content.
We have stressed the reference to "sovereign power" because of the state's contention that, to quote from the Attorney General's brief, "The fact that Mr. Givens was present, no matter whether that presence was authorized or unauthorized, could, in no respect, nullify the immunity of the appellant under Section 932.29, Florida Statutes [F.S.A.] and could not justify his refusal to answer the questions."
At first glance this position appears tenable, but upon deeper study it fades in significance, for the important, underlying principle involved is the deprivation of a man's liberty in a proceeding instituted by one having no genuinely official status and based on a refusal to answer that person's questions when he seems to have had no right to be present in the grand jury room, having got no authorization from the court, the governor, or the people.
If the attempted vesting of sovereign power in one not qualified to exercise it, as in the case of filing an indictment, conviction on which would culminate in imprisonment, is to be condemned, as we said in Sullivan v. Leatherman, supra, there could be no sound reason now to hold that that very person could set in motion machinery resulting in imprisonment for contempt for failure to answer questions he had not the authority to propound. The characteristics common to both are the invasion of the liberty of the individual and the process by which it is accomplished.
In justice to Judge William A. Herin, it should be emphasized that his judgment was entered and the appeal from it taken before the opinion in Sullivan v. Leatherman was filed.
We think the judgment must fall because of the infirmity of its foundation.
Reversed.
SEBRING, C.J., and TERRELL, CHAPMAN and ADAMS, JJ., concur.
HOBSON, J., not participating because of absence.
ROBERTS, J., not participating.