Lake v. State

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM. ELLIS, J.
• Citation: 129 So. 827,100 Fla. 373
• Decision Date: 29 July 1930
• Parties: LAKE v. STATE.

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 [129 So. 829]

[100 Fla. 375] 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 [100 Fla. 376] 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 [100 Fla. 377] 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 [129 So. 830] 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.

[100 Fla. 378] 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,

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