Lake v. State

• Decision Date: 29 July 1930
• Citation: 129 So. 827,100 Fla. 373
• Parties: LAKE v. STATE.
• Court: Florida Supreme Court

129 So. 827

100 Fla. 373

LAKE v. STATE.

Florida Supreme Court

July 29, 1930

En Banc.

Error to Circuit Court, Seminole County; De Witt T. Gray, Judge.

Forrest Lake was convicted of aiding and abetting in making false entries in the books of a bank, and he brings error. On petition for rehearing.

Affirmed.

See also 129 So. 832, 833, 834.

COUNSEL

Dickenson & Lake, of Tampa, for plaintiff in error.

Fred H Davis, Atty. Gen., and M. B. Smith, State Atty., of Titusville, for the State.

OPINION

PER CURIAM.

Seminole County Bank of Sanford, Fla., was closed August 6, 1927. Forrest Lake was president and A. R. Key was vice president of said bank. In February, 1928, A. R. Key as vice president was indicted for making false entries in the books of said bank, and Forrest Lake as president was indicted jointly with Key for aiding and abetting in making the said false entries. There was a severance as to Lake, who was tried, convicted, and sentenced to serve three years in the state penitentiary. Writ of error was taken to this court and the judgment below was reversed.

Petition for rehearing was seasonably entered by the defendant in error, but without considering the said petition this court of its own motion set the cause down for rehearing. At the outset we are confronted with the question of whether or not the state can ask for a rehearing in a criminal case. Plaintiff in error admits that it is competent for a court of its own motion to set any case down for rehearing, but he contends that the state cannot request that it be done.

We do not think this contention is well grounded. A 'rehearing' is a second consideration of a cause for the sole purpose of calling to the attention of the court any error, omission, or oversight that may have been committed in the first consideration. Jones v. Fox, 23 Fla. 462 2 So. 853; Hull v. Burr, 58 Fla. 475, 50 So. 768; Texas Company v. Davidson, 76 Fla. 475, 80 So. 558. Rule 25 governing practice and procedure before this court in effect provides that a rehearing must be applied for within thirty days from the filing of the judgment, decree, or order of the court, and the attention of the court called thereto. It is not in terms limited to any specific class of cases and this phase of the rule appears not to have been previously considered by us. In State ex rel. Knauss v Chillingworth, 88 Fla. 468, 103 So. 120, we upheld the right of the state to file a petition for rehearing in a criminal case prior to the going down of the mandate. See also Lovett v. State, 29 Fla. 384, 11 So. 176, 16 L. R. A. 313, where a motion to recall the mandate and reconsider the judgment previously entered was sustained.

We have examined the treatment of this question in many jurisdictions, and the rule seems well-nigh universal that, in the absence of statutory or constitutional provision controlling, prior to the adjournment of the term or other time fixed in which the cause passes beyond the jurisdiction of the court and becomes final, any court of record has full control over its judgments or decrees and can set them aside or reform them as it may deem right and legal. The rule applies to civil and criminal cases alike and may be effected on the court's own motion or on being advised by any party in interest. Parker v. State ex rel. Powell, 133 Ind. 178, 32 N.E. 836, 33 N.E. 119, 18 L. R. A. 567; Burgess v. Commonwealth, 136 Va. 697, 118 S.E. 273; People v. Gilbert, 281 Ill. 619, 118 N.E. 196; State v. Jones, 64 Iowa, 349, 17 N.W. 911, 20 N.W. 470; Drake v. State, 29 Tex.App. 265, 15 S.W. 725; Powers v. Commonwealth, 114 Ky. 237, 70 S.W. 644, 1050, 71 S.W. 494; State v. Gee Jon, 46 Nev. 418, 211 P. 676, 217 P. 587, 30 A. L. R. 1443; State v. Hazzard, 76 Wash. 586, 137 P. 143; Ross v. State, 16 Wyo. 285, 93 P. 299, 94 P. 217; People v. Northey, 77 Cal. 618, 19 P. 865, 20 P. 129. In Lovett v. State, supra, it was held that this court does not lose jurisdiction of a cause after the mandate is transmitted to and filed by the lower court where the judgment was based on a misrepresentation of the record of the cause. Under the common law courts had power to modify their judgments and decrees during the term at which they were rendered. We therefore approve the rule as here stated and adopted by other courts of last resort in this country.

It is next contended that the trial court erred in sustaining the state's demurrer to the defendant's plea in abatement. The plea in abatement as filed contained four separate pleas, all of which were abandoned except the third, which raised the question that eleven of the eighteen men composing the grand jury who returned the indictment against the defendant on which he was tried and convicted were interested and disqualified to serve on said grand jury because they were depositors and creditors of the Seminole County Bank, the closing of which precipitated the said indictment.

The state contends that the mere fact of being depositors in said bank would not disqualify the said grand jurors, that the plea in abatement is bad in form, and is totally lacking in the essential averments and prerequisites of such a plea, while the defendant relies on section 5947, Revised General Statutes of 1920 (section 8213, Compiled General Laws of 1927), to sustain the said plea.

Section 5947, Revised General Statutes of 1920 (section 8213, Compiled General Laws of 1927), is as follows:

'All the provisions of law covering the qualifications, disqualifications, exemptions, drawing, summoning, supplying deficiencies in whole or in part, and compensation and procurement of petit jurors shall apply to said Grand Jurors.'

In Peeples v. State, 46 Fla. 101, 35 So. 223, 225, 4 Ann. Cas. 870, this court construed the statute as thus quoted and there held: 'That 'all the provisions of law covering the qualifications, disqualifications, exemptions, drawing, et cetera, of petit jurors shall apply to grand jurors,” is not to be construed as making 'all grounds of challenge to the favor applicable to a petit juror grounds of disqualification of a grand juror.' It was further held in the Peeples Case that the qualifications and disqualifications referred to in section 5947, Revised General Statutes, related only to those generally applicable to all jurors. The disqualifications generally applicable to all jurors are specified in section 2774, Revised General Statutes of 1920 (section 4451, Compiled General Laws of 1927).

This interpretation is well supported in law and reason. Section 5954, Revised General Statutes of 1920 (section 8220, Compiled General Laws of 1927), defines the only ground of challenge to the favor applicable to grand jurors in this state, Oglesby v. State, 83 Fla. 132, 90 So. 825, while section 2692, Revised General Statutes of 1920 (section 4359, Compiled General Laws of 1927), defines those applicable to petit jurors. The general qualifications of grand and petit jurors are defined in section 2771, Revised General Statutes of 1920 (section 4443, Compiled General Laws of 1927), while as stated above the general disqualifications are defined in section 2774, Revised General Statutes of 1920 (section 4451, Compiled General Laws of 1927). These statutes we think evidence a clear intent on the part of the lawmaking power to define and distinguish the scope of the grounds for challenge as applied to petit jurors from that as applied to grand jurors, and we think the distinction perfectly apparent. Aside from these considerations, the very fundamental conception of the function of the two institutions supports this view. The grand jury is merely an inquisitorial and accusatorial body; it is not the ultimate fact finder, but on the basis of ex parte testimony indicts or accuses one of crime. Its finding is not a verdict or judgment and no interest other than as defined by statute will so disqualify a member of the grand jury as to vitiate the indictments returned by it. Reed v. State, 94 Fla. 32, 113 So. 630. For these reasons the demurrer to the plea in abatement was properly sustained.

It is next contended that the trial court erred in overruling defendant's motion in arrest of judgment.

A motion in arrest of judgment goes to matters intrinsic on the face of the record which would render the judgment erroneous or reversible if entered. It cannot be made after the term at which the cause was tried and is not favored as a means of attacking defects in an indictment. Jones v. State, 75 Fla. 533, 78 So. 529. In the case at bar the motion in arrest of judgment alleges that the grand jury which indicted the defendant was drawn from a jury box which contained more names than were allowed by law, to wit, 770 names, when the said jury box could legally contain a maximum of 500 names.

Section 2772, Revised General Statutes of 1920 (section 4444, Compiled General Laws of 1927), in effect provides that the county commissioners of the several counties shall hold a meeting the first week in January of each year or as soon thereafter as practicable, and at such other times as the circuit judge may order, and select from the male persons qualified for jury service in the county not less than 250 nor more than 500 names, which names shall be turned over to the clerk of the circuit court and by him placed in the jury box as required by section 2776, Revised General Statutes of 1920 (section 4453, Compiled General Laws of 1927). The circuit judge is authorized to have new lists drawn when that drawn by the county commissioners is about to become exhausted. Section 2772, Revised General Statutes of 1920 (sections 4444 and 4449, Compiled General Laws of 1927).

The statutes (section 2772, Revised General Statutes of 1920, section 4444, Compiled General Laws of 1927, and section...