Haddock v. State

Decision Date19 December 1939
Citation192 So. 802,141 Fla. 132
PartiesHADDOCK v. STATE.
CourtFlorida Supreme Court

Rehearing Denied Jan. 16, 1940.

Error to Criminal Court of Record, Polk County; Robert T. Dewell Judge.

Robert B. Haddock was convicted of murder in the second degree, and he brings error.

Affirmed.

COUNSEL

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

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for defendant in error.

OPINION

PER CURIAM.

Plaintiff in error, Robert B. Haddock, was informed against by the County Solicitor of Polk County, Florida, on the 18th day of January, 1936, in the Criminal Court of Record of said County for the unlawful killing of Guy Harvard Haynes, Jr., on July 2, 1934. The defendant upon arraignment, filed or entered a plea of not guilty and was placed upon trial and was by a jury of Polk County convicted on October 14, 1938, of murder in the second degree. A motion for a new trial and other motions were made and overruled and the defendant was by the trial court sentenced to serve a period of twenty years at hard labor in the State Prison for said offense.

From this judgment of conviction writ of error was used out, the record perfected and the case is here for review on eighty-six distinct assignments of error in the briefs presented or argued under nine separate questions. This case is here on the third writ of error. The case at bar is reported the first times in 121 Fla. 167, 163 So. 482; 129 Fla. 701, 176 So. 782.

When the case was reversed by this Court and a mandate sent down, counsel for the defendant applied to the trial court for leave and authority to withdraw the plea of not guilty then appearing of record and to file in lieu thereof such other motions and pleadings as counsel desired. The trial court on December 29, 1937, granted the motion and allowed the withdrawal of the plea of not guilty which was immediately done and counsel for defendant filed a plea in abatement, viz:

'Comes now the defendant, Robert B. Haddock, by and through his undersigned attorney, after the withdrawal of his plea of not guilty to the information in accordance with the order of Court heretofore entered in said cause allowing him to withdraw his said plea, and files this his plea in abatement of the information filed against him in said cause charging defendant with murder in the second degree, and says:
'1st. The Criminal Court of Record of Polk County, Florida has no jurisdiction to try this defendant on the said information.
'2nd. The information was filed by the Solicitor of the Criminal Court of Record prior to the transfer of said cause from the Circuit Court of Polk County, Florida, to the Criminal Court of Record.
'3rd. It affirmatively appears from the record in this cause that the defendant had been indicted by the Grand Jury of the Tenth Judicial Circuit of Polk County, Florida, for murder in the first degree, and was tried and convicted in the said Circuit Court of Polk County, Florida, for murder in second degree, when conviction and judgment has been reversed upon appeal, and the mandate of the Supreme Court of the State of Florida has been returned and filed in said Court; and that on the 18th day of January, 1936, Manuel M. Glover, the County Solicitor prosecuting in the Criminal Court of Record of Polk County, Florida, filed the information in this cause charging this defendant with murder in the second degree long before the jurisdiction of said cause was legally transferred to the Criminal Court of Record by the Circuit Court of said County, to-wit: On February 6, 1936.
'4th. The said information is not based on any sworn testimony legally taken before the Solicitor of the Criminal Court of Record of Polk County, Florida.
'5th. That no witness or witnesses were summoned by any legal process for the purpose of testifying before the County Solicitor, Manuel M. Glover, Prosecuting Attorney for the Criminal Court of Record for Polk County, Florida, upon which to base the charge set forth in the information in this cause.
'6th. The facts charged in the said information were based on the indictment and not upon any sworn testimony lawfully brought before the Solicitor of the Criminal Court of Record.
'7th. That the information sworn to as true is in fact false and untrue for the reason that the allegations set forth therein are based solely and exclusively upon information from sources other than the sworn testimony of any person or other sworn facts whatever to support it.'

A demurrer was filed by the County Solicitor of Polk County, Florida, to the plea in abatement, supra, questioning the legal sufficiency of the plea on the grounds, among others, viz: (a) the facts alleged in the plea are legally insufficient; (b) the plea negatives the fact that testimony was not before the County Solicitor when the information was prepared; (c) the defendant waived and was estopped as a matter of law from raising the legal sufficiency of the information; (d) facts appearing in the plea show that the information was based on the same sworn testimony as was before the grand jury when the indictment for first degree murder was filed; (e) the plea states the conclusions of the pleader.

The lower court sustained the demurrer and this ruling is assigned as error in this Court. It is discretionary with the trial court in allowing the withdrawal of a plea of not guilty in a criminal case and allowing the filing of a plea in abatement. See Benton v. State, 95 Fla. 919, 117 So. 378; Mercer v. State, 83 Fla. 555, 92 So. 535.

The demurrer to a plea in abatement in a criminal case admits as true the allegations of fact appearing in the plea. See Wilson v. State, 134 Fla. 390, 184 So. 31. Pleas in abatement must be certain (to a certain intent) in every particular. They must leave nothing to be supplied by intendment and no supposable special answer unobviated. See Cannon v. State, 62 Fla. 20, 57 So. 240; Taylor v. State, 49 Fla. 69, 38 So. 380; Oglesby v. State, 83 Fla. 132, 90 So. 825; Marks v. State, 115 Fla. 497, 155 So. 727. It is possible that the lower court's ruling on the demurrer could by this court be sustained because of the uncertainty of many of the allegations of fact appearing in the plea, but we shall go further into the merits of the plea. The case of White v. State, 126 Fla. 760, 171 So. 809, is relied upon by counsel for plaintiff in error.

The plea here shows that plaintiff in error was indicted by a grand jury on a charge of murder in the first degree and was convicted of the crime of murder in second degree and on writ of error to this Court a new trial was awarded. It is not clear when the mandate from this court was filed in the Circuit Court of Polk County, Florida, but on the joint motion of the State Attorney and attorney for plaintiff in error the Circuit Court, on February 6, 1936, entered on order transferring the cause from the Circuit Court to the Criminal Court of Record of Polk County for trial as provided for by Section 4349 to 4352, C.G.L. The date of filing the joint motion by counsel for the State and defendant does not appear by the record. Neither is it shown what papers were transferred in connection with the case at bar under the order dated February 6, 1936.

The plea submits the issue that no credible testimony was before the County Solicitor of Polk County, Florida, on January 18, 1936, the date the information was filed in the Criminal Court of Record against plaintiff in error. It is possible that the joint motion for the transfer was with the Circuit Judge on this date, but nothing definite appears to establish this fact. It is beyond dispute that the indictment against plaintiff in error for murder in the first degree, possibly the bill of exceptions, and other miscellaneous papers were in the Clerk's office of Polk County. It is possible that the testimony taken before the Coroner's jury was on file after the reversal of the case by this Court and the law required the case to be tried in the Criminal Court of Record of Polk County and the County Solicitor had access to these court files when preparing the information. The fact that the order of transfer is dated February 6, 1936, and the information was filed by the County Solicitor on January 18, 1936, is not a sufficient foundation to support the claim that there was not sufficient testimony before the County Solicitor upon which to base the information. The plaintiff had knowledge of all these facts and went to trial, was convicted, and for the second time a new trial was awarded by this Court. We think plaintiff in error waived his rights to insist on the defense submitted by the plea in abatement and cannot now be heard after a prior conviction and a reversal thereof by this court.

Counsel for plaintiff in error filed in the lower court, under Section 4341, C.G.L., a motion and supporting affidavits seeking the disqualification of the trial judge, Honorable Robert T. Dewell. We do not think it necessary to set out the supporting affidavits required by the statute, but the motion is, viz:

'Now comes the defendant, Robert B. Haddock, in his own proper person and upon oath says that he fears he will not receive a fair trial in the Court where the above named cause is pending on account of the prejudice of Honorable Robert T. Dewell, the Judge of said Court, against him, and that the facts and reasons for his belief that such bias or prejudice exists are as follows:

'During the last trial of said cause at which Honorable Robert T Dewell presided, after the jury had retired to consider the verdict, the said Judge invited some of the relatives of the deceased within the chancel rail of said court and exhibited to them unusual courtesy, which...

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