Skipper v. State

• Decision Date: 21 March 1934
• Citation: 114 Fla. 312,153 So. 853
• Parties: SKIPPER v. STATE.
• Court: Florida Supreme Court

153 So. 853

114 Fla. 312

SKIPPER v. STATE.

Florida Supreme Court, Division A.

March 21, 1934

Rehearing Denied April 23, 1934.

Error to Circuit Court, Hillsborough County; W. J. Barker, Judge.

C. A Skipper was convicted of embezzlement, and he brings error.

Affirmed.

COUNSEL

W. D. Bell, of Arcadia, for plaintiff in error.

Cary D Landis, Atty. Gen., Roy Campbell, Asst. Atty. Gen., and J. C Adkins, State Atty., of Gainesville, for the State.

OPINION

ELLIS Justice.

C. A. Skipper was indicted in Highlands county on the charge of embezzlement of property alleged to belong to the Highlands County Bank in the sum of $15,000. The indictment contained four counts. The first charged that the accused was the servant and agent of the bank, and that he embezzled 'money, the property, goods and chattels' of the bank. That allegation was followed by a videlicet under which the words following were used:

'The sum of Fifteen Thousand ($15,000.00) Dollars, currency of the United States of America, the denominations of which and a more particular description of which is to the Grand Jurors unknown, of the value of Fifteen Thousand (15,000.00) Dollars, which said money, property, goods and chattels came into the possession, care, custody and control, of him the said C. A. Skipper by reason of his said employment as such agent and servant as aforesaid.'

The offense was alleged to have been committed on October 17, 1931, and on divers dates and times between that date and the date of presenting the indictment.

The indictment was presented on May 15, 1933, and filed on that date.

The second count charged that the accused 'did fraudulently convert to his own use' certain property belonging to the bank. The words under the videlicet varied slightly from those used in the first count, but the variation is immaterial. The third count charges the offense in practically the same language as the first, while the fourth count charges that the accused 'did fraudulently conceal for his own use certain property, money, goods and chattels'; the description under the videlicet being the same.

The accused by his counsel moved to quash the indictment. The grounds were that it was vague and uncertain and did not sufficiently apprise the accused of the nature and cause of the accusation to enable him to prepare his defense; that it charged no offense punishable by law; that it was duplicitous; that date of the commission of the offense was not certain; that the statute under which the charge was made is not identified with sufficient certainty to enable the court to 'render judgment' thereon, nor to protect the defendant from a subsequent prosecution. There were three other grounds to the motion going to the formality of the preparation of the indictment. The grounds were that it was not prepared by the state attorney of the Nineteenth judicial circuit, the circuit in which the county of Highlands is located, nor was it signed by the 'prosecuting' attorney of that circuit, nor was it signed by any person 'authorized by law so to do.'

The motion was denied. The defendant pleaded not guilty and went to trial, which resulted in his conviction by the jury as charged; judgment and sentence followed. The sentence was to a period of three years' confinement in the state prison at hard labor.

The trial began on the 11th day of July, 1933, nearly two months after the entry of the plea of not guilty. As the trial began, the accused suggested that the judge of the court, Hon. W. J. Barker, was disqualified to sit in the cause because he was a depositor in the bank then defunct which was alleged to have been defrauded by the accused; that the judge carried the deposit account in the bank as guardian and that he was related by 'consanguinity or affinity' to the person for whom he held the funds as guardian in the bank; that under the provisions of section 4152, Comp. Gen. Laws, the judge was disqualified because his interest was such as to disqualify one as a juror having such interest.

The court entered an order holding that the grounds upon which the suggestion of disqualification was made were insufficient, that chapter 16053, Acts of 1933, repealed section 4152, Comp. Gen. Laws, and because the existence of the guardianship account was brought to the attention of counsel for the accused more than six weeks before the date on which the suggestion of disqualification was made and the same was not filed within thirty days, therefore after the accused through his counsel knew of the alleged grounds for disqualification as required by the law.

The action of the court in this regard constitutes one of the many questions of law, according to the brief of counsel for plaintiff in error, that is involved in this case.

The suggestion of disqualification does not state within what degree of relationship the judge stands to the person for whom he carried the account in the bank as guardian. The suggestion assumes that the person for whom the account was carried was interested in the result of the case, or was a party in the cause. It is asserted that the judge was interested in the cause under the provision of the statute named, section 4152, supra, but there is no allegation as to what constitutes the alleged interest. The allegation that he is related by 'consanguinity or affinity' within the 'prohibited degrees' to the person for whom he holds as guardian is another ground; but it is not stated that such person is a party in the cause or is interested in the result thereof. There is no allegation of fact in the suggestion that would disqualify the judge as a juror if he were a citizen subject to jury duty.

The interest which disqualifies a judge is a property interest in the action or its result. Ex parte Harris, 26 Fla. 77, 7 So. 1, 6 L. R. A. 713, 23 Am. St. Rep. 548; Power v. Chillingworth, 93 Fla. 1030, 113 So. 280.

Section 2525, Rev. Gen. St. 1920, which provided that no judge shall sit in a cause in which he would be excluded from being a juror by reason of interest, consanguinity, or affinity to either of the parties was amended by chapter 10165, Acts 1925, which became section 4152, Comp. Gen. Laws, supra. The act of 1925 omitted those provisions of section 2525, Rev. Gen. St., supra, relating to a judge's disqualification to sit in a cause in which by reason of interest he would be excluded from being a juror, but substitutes other language declaring his disqualification if he is interested in the result of the cause or is related by consanguinity or affinity to a party who is interested. The interest which disqualifies had been held to be a pecuniary or property interest. See Ochus v. Sheldon, 12 Fla. 138; Ex parte Harris, supra; Power v. Chillingworth, supra.

As early as 1899 in the case of Bryan v. State, 41 Fla. 643, 26 So. 1022, this court held that the grounds which disqualify judges and jurors are not coextensive under the statute. That rule obtains now. The interest which disqualifies a judge is a property interest, but a juror's interest may arise in many ways other than by way of property or pecuniary considerations.

The suggestion of disqualification was too uncertain and indefinite even under the provisions of section 4152, Comp. Gen. Laws, supra, as to the interest held by the judge in the cause to constitute a valid ground for the judge's disqualification.

Chapter 16053, Acts 1933, is a revision of the subject of disqualification of judges. The act expressly repeals section 4152, Comp. Gen. Laws, and requires the suggestion of disqualification to be filed within thirty days after the party or his attorney of record learns of such disqualification, and, if that requirement is not observed, the 'disqualification shall be taken and considered as waived' under the language of the act.

In the case of State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 331, the cause in which the judge was held to be interested was a civil one. The case was decided in 1930, and section 4152, Comp. Gen. Laws, was under consideration as the law which was applicable in the case. The judge was held to have a pecuniary interest in the civil litigation between two corporations because he was a depositor and therefore creditor of the Merchants' Bank & Trust Company, one of the parties. The opinion prepared in the case shows that the pecuniary interest in the result of the litigation which will disqualify a judge is one of quality rather than degree. If the bank won in the controversy, the security for the judge's deposit would be enhanced; if it lost, it would be decreased. So, regardless of the amount of the deposit, his interest was of a property or pecuniary nature or quality.

'The Cold neutrality of an impartial judge' about which much is said in the books is assumed to be disturbed by a pecuniary interest which renders his position analogous to that of a judge sitting in his own cause, a situation which has offended a right sense of justice since the days of Lord Coke, who said that the maxim was a natural right so inflexible that an act of Parliament seeking to subvert it would be declared void. The observance of that maxim is dictated by an enlightened public policy, but the distinction has been recognized in many jurisdictions including this one between a property or pecuniary interest and such an interest as results from a feeling of sympathy such as would disqualify a juror. To hold that a judge is disqualified because of sympathy or a feeling akin to it that arouses a metaphysical interest would carry the doctrine to an absurdity. It is very doubtful if any right thinking jurist, with the emotions and feelings of a normal man, ever tried a case of murder, arson, robbery, or any heinous crime but that he...