Opinion
August 21, 1951.
Appeal from the Criminal Court, Polk County, R.H. Amidon, J.
Meginniss, Thompson Morrison, Ben A. Meginniss, Ford L. Thompson, and Harry Morrison, Tallahassee, for appellants.
Richard W. Ervin, Atty. Gen., and Phillip Goldman, Asst. Atty. Gen., for appellee.
The County Solicitor of Polk County, on May 15, 1950, filed in the Criminal Court of Record an information against C.M. Smith, Charlie Lamb and Alfred Lamb. The information contained eight counts and charged the defendants-appellants with crimes viz.: (1) accessory after the fact to grand embezzlement; (2) accessory before the fact to grand larceny; (3) principal in the second degree to uttering a forged instrument; (4) accessory after the fact to forgery; (5) principal in the second degree to grand embezzlement; (6) accessory after the fact to obtaining money by false pretense; (7) receiving and aiding in the concealment of stolen property; and (8) receiving and aiding in the concealment of embezzled property. The information, supra, so filed on May 15, 1950, was one of five charging the defendants-appellants with similar offenses. The defendants-appellants were forced into trial some 29 days after the filing of the above information.
The defendants-appellants filed: (1) motion for a continuance; (2) motion to quash; (3) motion for severance; (4) motion requiring the State to elect on what counts of the information it would rely on and which the defendants would be required to defend against was made prior to the time of the trial and at the conclusion of the State's case. The State abandoned count (3): "uttering a forged instrument." The record discloses the following: The Court: "I will instruct the jury there are seven various ways in which the same offense might have been committed, and they can find him guilty of none or one or any number, if they find him guilty; if they find him guilty under several counts it would still be only one offense."
The several motions of the defendants-appellants were by the trial court overruled and denied; pleas of not guilty were by the defendants below filed as to each count of the information; they were placed upon trial some 29 days after the filing of the information by the County Solicitor, and a jury hearing the testimony and instructions of the Court upon the applicable law, returned verdicts of guilty under counts 7 and 8, which charged: (a) receiving and aiding in the concealment of stolen property; and (b) receiving and aiding in the concealment of embezzled property. A motion for a new trial on various grounds was made and denied by the trial Court. The defendants were each adjudged guilty and each sentenced to serve a period of five years at hard labor in the State Prison. They appealed.
Counsel for appellants, in their briefs and orally at the bar of this Court, point out that the County Solicitor of Polk County filed at the same time other informations viz.: Nos. 6968, 6969, 6970 and 6971 (see tr. 9) comprising several counts or charges each against the defendants-appellants and having their existence or stems largely from the following factual background: B.C. Cook Sons, during the year 1950, were citrus fruit distributors doing business in Polk County, Florida. One J.W. Hall possessed a license and was legally authorized to deal in citrus fruits. One M.L. (or Red) Taylor, according to the record, had handled some fruit in Polk County but under the name of J.W. Hall as he did not hold a citrus fruit license. The checks for the fruit would be made payable to J.W. Hall and drawn by a Mr. Merrill, agent for B.C. Cook Sons, and by him delivered to Red Taylor. Taylor, upon receipt of the check, would obtain Hall's endorsement and then he (Hall), after endorsement, would return the check to Red Taylor, who would in turn obtain the money thereon at the bank. Mr. Hall testified that he had authorized Taylor to handle fruit on one occasion in this manner and on other occasions under enumerated conditions and circumstances.
Taylor testified that he had handled fruit in Polk County on occasions when the deal or deals would approximate $25,000 or $30,000, but it is not clear from the testimony under whose citrus licenses he was operating at the time of these deals. Pursuant to the course of trade as above outlined, B.C. Cook Sons, on February 28, 1950, issued their check payable to J.W. Hall in the sum of $2,000 and delivered the same to M.L. (Red) Taylor. The above check was delivered to Red Taylor to use in buying fruit for delivery to B.C. Cook Sons. Red Taylor, according to the record, did not use the check in the purchase of fruit, but went to Winter Haven, met the appellants and with them played "draw poker". Red Taylor signed the name of J.W. Hall on the back of the $2,000 check — then signed his name (M.L. Taylor), and one of the defendants, C.M. Smith, and I. McKinley each signed the check. The check was presented to the bank and by it paid. Red Taylor used the proceeds of the $2,000 check in paying his losses in the "poker games". He paid it, in different sums, to the appellants. Taylor filed a plea of guilty to an information charging him with forging J.W. Hall's name to the $2,000 check and was sentenced to serve a period of time in the State Prison. He was used by the State as a witness against the defendants-appellants. The defendants admitted winning the money from Taylor in the "poker game", but each vehemently denied that they knew or had knowledge that the $2,000 was either stolen or embezzled by Taylor. Taylor was not convicted of larceny or embezzlement of the funds, nor did he plead guilty to either of these offenses.
Counsel point to the record and contend that the atmosphere about the court room in Bartow where the appellants were tried was hostile; also the undue haste by the prosecution of forcing the appellants into trial prior to preparation, coupled with all adverse rulings to appellants by the trial court involving discretionary matters, were not only unwholesome but reflected an unhealthy situation which rendered it difficult for the defendants to obtain a fair and impartial trial. We do not think it necessary for a determination of this controversy to decide or rule upon the merits or lack of merits of the above contentions.
The record reflects that during the progress of the trial the County Solicitor introduced into evidence, over the seasonable objections of counsel for the appellants, four other checks issued by B.C. Cook Sons payable to J.W. Hall and delivered to Red Taylor at subsequent dates to February 28, 1950. The proceeds of the four checks were lost by Red Taylor in a "poker game" with the defendants-appellants. These checks are identified as State's Exhibits 2, 3, 4 and 5. The only check, or proceeds thereof, the appellants were charged with in the several counts of the information was the one for $2,000 payable to J.W. Hall and delivered to Red Taylor, dated February 28, 1950. The appellants contend that this ruling was prejudicial and erroneous as the testimony tended to establish the commission of other crimes by the defendants-appellants wholly independent of the one charged in the several counts of the information under which they were then on trial. They cite our rulings in Wallace v. State, 41 Fla. 547, 26 So. 713; Coston v. State, 139 Fla. 250, 190 So. 520, and other similar cases. The State contends that the ruling of the trial court in admitting the four checks into evidence was not prejudicial nor erroneous and cites our ruling in Talley v. State, 160 Fla. 593, 36 So.2d 201. It is our conclusion that the ruling of the trial court was clearly erroneous and that the judgment below would have to be reversed on this ground alone, even if there were not other errors appearing in the proceedings. But a careful consideration of the record convinces us that there is a more serious ground for reversal, namely, that there is not one scintilla of evidence to support the charges as laid in the information. Accordingly the judgment entered below should be reversed.
It is so ordered.
SEBRING, C.J., and ADAMS and ROBERTS, JJ., concur.