Johns v. State

• Decision Date: 20 September 1940
• Citation: 144 Fla. 256,197 So. 791
• Parties: JOHNS v. STATE.
• Court: Florida Supreme Court

197 So. 791

144 Fla. 256

JOHNS v. STATE.

Florida Supreme Court, Division B.

September 20, 1940

George L. Johns was convicted of being an accessory before the fact to the commission of the willful setting fire to and burning a certain dwelling house with the intent to injure and defraud an insurance company, and he appeals.

Affirmed. Appeal from Circuit Court, Suwannee County; R H. Rowe, judge.

COUNSEL

J. L Blackwell and G. Warren Sanchez, both of Live Oak, for appellant.

George Couper Gibbs, Atty. Gen., and William Fisher, Jr., Asst Atty. Gen., for appellee.

OPINION

BROWN Justice.

This is an appeal from a judgment of conviction on the 4th count of an information which was filed in the Circuit Court of the Third Judicial Circuit in and for Suwannee County on November 13, 1939, at the regular fall term of said court. The information was signed by O. C. Parker, Jr., 'State Attorney of the Second Judicial Circuit of the State of Florida prosecuting in the Third Judicial Circuit of the State of Florida under authority of assignment order of the Governor of the State of Florida.' In the body of the information it is recited that Mr. Parker was acting 'under authority of an assignment order made by the Honorable Fred P. Cone, as Governor of the State of Florida, dated the 8th day of November, A. D. 1939, same being recorded in the minutes of this Court in full, reference to which is hereby made for all purposes whatsoever,' etc.

The Governor's order of assignment was not included in the transcript of record which was filed in this court by the appellant, but upon the date of the oral argument herein, on July 25, 1940, a certified copy of the assignment order was filed with this court by counsel without objection. After setting forth the Governor's order, signed by the Governor and attested by the Secretary of State, under the Seal of the State, the Clerk of the Circuit Court certifies that said instrument is duly recorded in the Circuit Court minutes record 8 at page 4, and then follows this language: 'Witness my hand and the seal of said Court this 9th day of November and actually recorded as of November 13, 1939, by order of the Court.' This certificate was signed by the clerk by a deputy clerk.

Then follows a second certificate by the clerk signed on July 24, 1940, certifying 'the foregoing is a true and correct copy of said order as the same appears in the files of this office and as recorded in Circuit Court Minutes 8 at page 4.'

The Governor's assignment order begins by saying: 'Whereas, for good and sufficient reasons made known to me, I think that the ends of justice would be best subserved by assignment of another State Attorney to discharge the duties of State Attorney of the Third Judicial Circuit at the regular term of Circuit Court in and for Suwannee County in said Circuit, herein specified;' and then the executive order goes on to assign, authorize and empower Hon. O. C. Parker, Jr., State Attorney of the Second Judicial Circuit of the State of Florida, to proceed to Live Oak in said County and State and thereupon at the regular term of the Circuit Court of the Third Judicial Circuit in and for Suwannee County beginning Monday, November 13, 1939, or as soon as said term shall commence, to discharge all and singular the duties of State Attorney of the Third Judicial Circuit of Florida in and for said County, in the place and stead of Hon. A. K. Black, State Attorney of said Third Judicial Circuit, and to do and perform all matters and things necessary or proper to be done and performed by the State Attorney of the Third Judicial Circuit at said term of court and vesting him with all and singular the powers and authority conferred by the constitution and laws of Florida upon State Attorneys acting by virtue of an order of the Governor.

The first count of the information charges Carl Hurt with unlawful and felonious setting fire to and the burning of a dwelling house. The second count charges the appellant George L. Johns with having aided, counseled, hired and procured the said Carl Hurt to commit the said felony. The third count charges Carl Hurt with the unlawful, felonious and wilful setting fire to and burning a certain dwelling house, occupied by George L. Johns and several others, 'the property, goods and chattels of George L. Johns and George C. Jackson' with the intent to injure and defraud the insurer, Firemen's Fund Insurance Company, a corporation; and the fourth count charges the appellant Johns as an accessory before the fact to the commission of the felony charged in said third count.

The appellant assigned four grounds of appeal, and is by the terms of the criminal procedure act confined to those grounds. But in his brief counsel for appellant argues only two matters and both deal with the action of the trial court in overruling the motion to quash the information which is the first ground of appeal. The matters discussed in the brief for appellant concern the validity of the information as sworn to by the assigned State Attorney, and the sufficiency of the information to charge an offense under the laws of this State. The third ground of appeal attacks the ruling of the court on the motion for a new trial. This motion contains four grounds, the third of which relates to the action of the trial court on the motion to quash, which is the only ground of the motion which has been argued in behalf of appellant.

In the able brief filed by counsel for appellant it is stated that the questions involved are such that they may be incorporated in the argument in two parts; the first being that, as appellant contends, under the decisions of this court the information involved in this case is illegal, unconstitutional and void, because it was not filed by the prosecuting attorney of the court wherein the information was filed, it having been alleged in the motion to quash that the State Attorney for the Third Judicial Circuit 'is and has been at all times, ready, willing, able and qualified to perform any and all duties of State Attorney in this Case'; and the second division of the argument is based upon the contention that even if the information had not been filed by an improper officer, it is still unconstitutional and illegal and void because at the time of the entry and filing of the information in question there was not recorded in the minutes of the court an assignment order made by the Honorable Fred P. Cone, as Governor of the State of Florida, vesting authority in O. C. Parker, Jr., State Attorney for the Second Judicial Circuit, to prosecute and act in for the Third Judicial Circuit, as alleged in said information.

It is also contended elsewhere in the brief that the information is framed under the provisions of Section 7208(7), Comp.Gen.Laws of Florida, Perm.Suppl. Vol. 6, and is defective because the information does not set forth that the defendant after the fire made claim or demand for the insurance.

Taking up these contentions in their inverse order, our view is that the 4th count of this information was obviously drawn under Section 7208(12), C.G.L.Perm.Suppl., as the information follows quite closely the language of said Section, which Section does not require that any claim shall have been made upon the insurer in order to render the defendant guilty, and it was therefore unnecessary for the information drawn under that section to allege that any such claim was made. Section 7208(7), C.G.L.Perm.Suppl. was derived from Chapter 6858, Acts of 1915, while said Section 7208(12) is Chapter 15602, Acts of 1931, Ex.Sess., a later act, and hence, if there be any inconsistency between the two sections, in must be resolved in favor of the Section last enacted. The dwelling house is alleged to have been the property of George L. Johns and George C. Jackson, and the crime is alleged to have been committed in the county of Suwannee. We do not think it can be successfully contended that the information was so vague as to subject the defendant to a second prosecution for the same offense, nor that the information did not sufficiently advise the defendant of the crime with which he was charged. The date of the crime is also alleged in the information.

Now, as to the contention of appellant that the order assigning the State Attorney to file the information was not recorded at the time the information was filed. It is not denied that the order was made by the Governor pursuant to Section 4743 C.G.L., or that the person assigned as a State Attorney was in fact a State Attorney of another circuit. The certified copy of the Governor's order which was allowed by this Court to be filed on the day of the oral argument does not affirmatively show that the order was not in fact recorded in the minutes of the court at the time the information was filed by the assigned State Attorney. The statute is silent as to the necessity for the recording of the Governor's order of assignment, but it is the duty of the trial court to which the assigned State Attorney appears and claims the right to serve as State Attorney to satisfy itself that he was actually assigned by the Governor, and it would be advisable for the courts to require the order of assignment to be recorded in the minutes of the court, as is usually done in cases of this sort, by way of analogy to the holding of the court in the case of an assigned Circuit Judge (Realty Co. v. Fraliegh-Smith Inv. Co., 90 Fla. 769, 107 So. 174), but the statute does not require it. Furthermore, this certified copy of the executive order shows that it was signed by the Governor and attested by the Secretary of State under the Seal of the State, and this raises a presumption that such executive order was issued from the Secretary of State's Office...