Johnson v. State, s. 67--92

• Decision Date: 02 February 1968
• Docket Number: Nos. 67--92,67--140,s. 67--92
• Citation: 206 So.2d 673
• Parties: Jackie Lee JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 673

206 So.2d 673

Jackie Lee JOHNSON, Appellant, v. STATE of Florida, Appellee.

Nos. 67--92, 67--140.

District Court of Appeal of Florida, Second District.

Feb. 2, 1968.

Rehearing Denied Feb. 27, 1968.

Robert E. Jagger, Public Defender, and Joseph F. McDermott, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

ALLEN, Judge.

The appellant, Johnson, has appealed from two judgments and convictions of 'uttering a check with a forged endorsement.'

Two informations were filed against appellant. One of the informations pertained to certain criminal acts allegedly committed by appellant in a St. Petersburg Publix Market on the 7th of September, 1966. The second information contained the same charges except that the alleged acts had taken place one day later on September 8, 1966.

The two cases were consolidated for trial and also for purposes of this appeal.

Two women employees from the Publix Market acted as witnesses for the state and identified the appellant as being the person for whom they had cashed the checks.

The lower court directed verdicts of acquittal as to Count One of each information on the ground that no evidence had been adduced to show knowledge that the signature of the maker was forged. The cases were submitted to the jury on Count Two of the informations and appellant was found guilty of both charges.

Appellant has raised two points on this appeal. The first is whether or not the court erred in commenting on evidence in its instructions. The second is whether the court erred in limiting defendant's number of peremptory challenges.

After carefully examining the record on appeal and researching the problem areas in some depth, we conclude that both questions raised by appellant must be answered in the negative. The judgments and sentences appealed from must, therefore, be affirmed.

At the conclusion of the testimony, the trial judge proceeded with his instructions to the jury. During those instructions he defined 'uttering and publishing' and 'forged endorsement' after which he stated:

'Now, you note that notwithstanding that the elements may have been proved that I have defined for you; that is to say, the uttering and the publishing of a check; and notwithstanding the forged endorsement, it is essential that the state establish knowledge on the part of this defendant that he knew the endorsement was forged, and further that he did utter and publish with the intent to defraud.

'Now, gentlemen, knowledge and intent are states of mind, and they are rarely, if ever, susceptible of direct or positive proof. You just cannot open a person's mind and see what he knows or intends. But that which a person knows and that which he intends may oftentimes be inferred from his acts and his conduct in the face of all the facts and circumstances with which he is faced and which he knows with which he is faced. And it is for you to determine from all the facts and circumstances of the case which you believe to be true; that is to say, from circumstantial evidence, whether or not the State has proved to you that this defendant, assuming the check, assuming the forged endorsement, this defendant knew that it was forged; and further whether or not he had the intent to defraud. Now, the intent to defraud which is required in this case is the conscious purpose to commit a fraud upon another person. The other person in this case is alleged to be Publix Market, Inc.'

We do not view the quoted parts of the judge's charge as commenting on the evidence.

In Marlow v. State, 1905, 49 Fla. 7, 38 So. 653, the trial court charged the jury, in effect, that if the defendant, with malice toward the deceased, induced an assault upon himself with premeditated design to shoot and kill the decedent if the decedent did assault him, then the defendant could not avail himself of the plea of self defense. Our Supreme Court, in the Marlow case, supra, held that the instruction above referred to did not invade the province of the jury and affirmed the judgment of the lower court.

And then in Griggs v. State, 1929, 96 Fla. 749, 119 So. 513, the Court held that where the judge had qualified his charge with '* * * if you believe from the evidence * * *', certain recitations which the judge made thereafter did not amount to an assumption in the instruction that certain material and controverted facts were established.

We view those portions of the judge's charge which we have quoted above to fall squarely within the holding of the Griggs case, supra, pointing out once again that they do not amount to a commentation on the evidence.

We now turn our attention to a consideration of the second question, i.e whether the court erred in limiting defendant's number of peremptory challenges. In reference to this question, we hold, that since the court below allowed eight peremptory challenges at the trial, the defendant received the six peremptory challenges to which he was entitled under the statute, plus two additional challenges, which we deem to be within the trial court's discretion to grant or deny.

The statute to which we refer is Fla.Stats., § 913.08, F.S.A. It provides:

'913.08 Number of peremptory challenges

The state and the defendant shall each be allowed the following number of peremptory challenges:

'(1) Ten, if the offense charged is punishable by death or imprisonment for life;

'(2) Six, if the offense charged is a felony not punishable by death or imprisonment for life;

'(3) Three, if the offense charged is a misdemeanor.

'(4) If two or more defendants are jointly tried each defendant shall be allowed the number of peremptory challenges specified above and in such case the state shall be allowed as many challenges as are allowed to all of the defendants.'

In Meade v. State, Fla.1956, 85 So.2d 613, 59 A.L.R.2d 835, our Supreme Court held that it was error for the court to order two prosecutions for murder consolidated for trial where the defendant had objected to the consolidation on various grounds. After holding that reversible error had been committed in consolidating the cases, the court, in its opinion, stated:

'The statute dealing with the subject of peremptory challenges contains a provision that the defendant shall be allowed ten of such challenges if the offense charged is punishable by death or life imprisonment and that if two or more defendants are jointly tried, each of them shall be allowed ten peremptory challenges. Sec. 913.08, Florida Statutes 1953, and F.S.A. But it does not follow that if a defendant is faced with charges of murdering two persons, the number of his peremptory challenges should be restricted to ten simply because there is but one defendant. When the fundamental purpose of the challenges is considered, the contrary is plain.'

It is worth noting that in the statute referred to above, the legislature saw fit to provide specifically that in the event two or more defendants are tried together each defendant shall be allowed a certain number of peremptory challenges. If the legislature had intended for a defendant with two or more charges against him to have a specified number of peremptory challenges on each charge, as claimed by appellant, it would have so provided in the statute.

The case of Blackwelder v. State, Fla.App.1958, 100 So.2d 834, was a prosecution under two informations, which were consolidated for trial. One information charged the defendant with the unlawful sale of intoxicating liquors in a dry county, and the other information charged him with unlawful possession of intoxicating liquors with intent to sell same in a dry county. Judge Sturgis, speaking for the First District Court of Appeal, held that where the basis for the informations arose out of a single incident, the evidence was secured simultaneously, and the witnesses were identical, the defendant was not entitled, upon a consolidation of the cases, to accumulate the number of peremptory challenges that would have been allowable had the cases been tried separately.

The court further held that trial judges have discretionary power to order consolidation of criminal cases involving two or more informations relating to similar or connected offenses.

In its opinion, the court discusses the Meade case, supra, saying:

'Defendant cites Meade v. State, Fla., 85 So.2d 613, 59 A.L.R.2d 835, as authority for his alleged right to six peremptory challenges, that being the aggregate number that would have been available to him on separate trials of the charges made by the two informations. We do not agree. In the Meade case separate indictments charged him with murder in the first degree. They related to two distinct homicides, in one of which the victim was bludgeoned to death with a shotgun, and in the other was shot to death with a pistol. Defendant Meade contemplated introducing no testimony but his own in defense of one case, which would have entitled him to the opening and closing argument before the jury, while in the other he contemplated using additional witnesses, and he strenuously and repeatedly objected to consolidation, before and after the proceedings commenced. The supreme court held that it was prejudicial to consolidate the charges because it seriously disabled the presentation of his defense. We are aware of the dicta in that case to the effect that even if consolidation were proper under the circumstances, the gravity of the charges was such that defendant should have been permitted twice the number of challenges specified by the act. However, there is no sound parallel between the facts in that case and those in the case on review.'

The court concluded its opinion by saying:

'* * * It is not clear under our statute whether the number of allowable challenges varies according to whether the trial is one involving a single indictment or information or involving two or more indictments or...