Suarez v. State

• Decision Date: 12 January 1928
• Citation: Suarez v. State, 95 Fla. 42, 115 So. 519 (Fla. 1928)
• Parties: SUAREZ et al. v. STATE.
• Court: Florida Supreme Court

115 So. 519

95 Fla. 42

SUAREZ et al. v. STATE.

Florida Supreme Court, Division A.

January 12, 1928

Error to Criminal Court of Record, Hillsborough County; W. Raleigh Petteway, Judge.

Emelio Suarez, Benigno Suarez, and Charles Naya were convicted of larceny and receiving stolen property, and they bring error.

Reversed.

Syllabus by the Court

SYLLABUS

If altering information filed to include additional defendants is allowable, such altered information should be re-signed resworn, and refiled by county solicitor; objection to information, altered so as to include more defendants, but not refiled, not raised on motion to quash, will be deemed waived after judgment (Const. art. 5, § 28;Rev. Gen. St 1920, § 5976).If it be allowable to alter an information already filed by the county solicitor so as to include additional defendants, such altered or amended information should not only be resigned and resworn to, but should also be refiled, by the county solicitor; but, the defendants not having objected to such information on this ground in their motion to quash, this omission will, after verdict and judgment, be deemed as waived by the defendants.

Requiring prosecuting attorney to furnish bill of particulars seasonably and reasonably demanded rests largely within court's discretion subject to review; denial of bill of particulars reasonably and seasonably demanded, resulting in defeating justice, is reversible error.Where a bill of particulars is seasonably applied for, and reasonably demanded, the matter of requiring the prosecuting attorney to furnish same rests largely within the court's discretion but that discretion is subject to review, and, where the denial of the application may result in defeating justice, it will be treated as reversible error.

Denial of vague, meager, and general motion for bill of particulars in absence of injury or prejudice, will not be held abuse of discretion.Where a motion for a bill of particulars is meager, vague, and general in its statement of the grounds therefor, and no injury or prejudice appears to have resulted to the defendant from the denial of such motion, it cannot be said that any abuse of discretion on the part of the trial court is shown.

Granting or denying motion for severance is largely discretionary; generally, ruling of trial court on motion for severance will not be disturbed, in absence of abuse of discretion.The granting or denial of a motion for severance is largely discretionary, and the ruling of the trial court thereon will not in general be disturbed, where no abuse of discretion is shown.

Where defendants' interests are antagonistic, or evidence, incompetent and prejudicial against one, is to be introduced against another, denial of severance is error, requiring reversal, unless record shows lack of injury.Where the defense or interests of two or more jointly indicted or informed against are antagonistic, or if evidence which is incompetent against one defendant is to be introduced against another, and is of a sort to be prejudicial to the former in the eyes of the jury, a severance should be granted, and its denial is error, warranting a reversal, unless the record shows that no injury resulted therefrom to the movant.

Statute pertaining to disqualification of judges is to render tribunals free from bias or prejudice; judge challenged for bias or prejudice may not decide as to matters of prejudice alleged (Rev. Gen. St. 1920, § 2674, as amended byLaws 1923, c. 9276).The purpose of section 2674,Rev. Gen. Stats. 1920, as amended bychapter 9276 of the Laws of 1923, pertaining to the disqualification of judges, is a salutary one, and evidences a solicitude that our judicial tribunals shall be free from bias or prejudice that might prevent impartial judgment; and to this end the statute withdraws from the challenged judge a decision upon the truth of the matters alleged.No. discretion is vested in such judge to determine the question of whether or not he is prejudiced.

Where affidavit and supporting papers setting up prejudice of judge comply with statute, judge should not try cause; judge challenged for bias and prejudice has duty to pass on legal sufficiency of affidavit to invoke statute(Rev. Gen. St. 1920, § 2674, as amended byLaws 1923, c. 9276).Where the affidavit and supporting papers required by the statute, setting up the prejudice of a judge against a party in any action or proceeding, comply with the requirements of the statute, such judge should not try the cause.But he has a lawful right, and it is his duty, to pass primarily upon the legal sufficiency of the affidavit to invoke the statute.

Affidavit challenging judge for bias and prejudice must state facts and reasons for belief of affiant; facts and reasons stated for affiant's belief in bias or prejudice of judge must tend to show personal bias or prejudice; statute relating to disqualifying judge for bias or prejudice does not enable litigant to oust judge merely because of adverse judicial rulings made in cause (Rev. Gen. St. 1920, § 2674, as amended byLaws 1923, c. 9276).The statute requires the affidavit to state the facts and reasons for the belief of the affiant that any such bias or prejudice exists on the part of the challenged judge.This is an essential part of the affidavit, and the facts and reasons stated must tend to show personal bias or prejudice.It is not the intent of the statute to enable a discontented litigant to oust a judge merely because of adverse judicial rulings made by him in the cause.

Affidavit, showing facts and reasons for belief that judge was biased or prejudiced were predicated on rulings adverse to affiant on preliminary motions, was insufficient on face, and did not challenge judge's proceeding with trial (Rev. Gen. St. 1920, § 2674, as amended byLaws 1923, c. 9276).Where, in an effort to disqualify a judge under our statute, it appears from the affidavit that the 'facts and reasons for the belief that bias or prejudice exists on the part of the judge' are predicated upon the fact that the judge had ruled adversely to the party making the affidavit upon several preliminary motions in the cause, the affidavit does not comply with the intent of the statute, is legally insufficient upon its face, and the challenged judge is in such case free from error in so holding and proceeding with the trial of the cause.

Bias or prejudice of judge cannot be predicated on mere errors of judgment in judicial rulings on legal questions arising in cause (Rev. Gen. St. 1920, § 2674, as amended byLaws 1923, c. 9276).It is not the intent of our statute relating to the disqualification of judges that the bias or prejudice therein referred to can be predicated upon any mere errors of judgment on the part of a challenged judge in his judicial rulings upon legal questions arising in the cause.

Generally, evidence that accused has committed other crime, wholly independent of one in question, even though of same sort, is inadmissible.The general rule is that, on prosecution for a particular crime, evidence which in any manner shows, or tends to show, the accused has committed another crime, wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible.

Where guilty knowledge must be proved, evidence that, at another time and place, not too remote, accused committed crime similar to one charged, is admissible; where quilty knowledge is presumed from act itself, evidence of other crimes should generally be excluded.Where the matter of the crime is such that guilty knowledge must be proved, evidence is admissible to prove that at another time and place, not too remote, the accused committed a crime similar to that charged.But, where guilty knowledge is presumed from the character of the criminal act itself, evidence of other crimes should not generally be received.

Where crime charged is one of series or system of criminal acts in pursuance of same purpose, evidence of such other acts is sometimes admissible to show intention, plan, or guilty knowledge.Where the crime charged is one of a series or system of criminal acts occurring so near together in point of time and so nearly similar in means as to lead to the logical inference that they are mutually dependent, and committed in pursuance of the same deliberate criminal purpose and the means planned beforehand, evidence of such other acts is sometimes admissible, not for the purpose of proving that the defendant committed the crime charged, but for the purpose, where the same is relevant, of showing his intention, plan, or a guilty knowledge, or to show that the acts charged against him were not the result of mere accident, mistake, or inadvertence.

Under information charging larceny of Ford coupé and receiving stolen property, admitting evidence of stealing other automobiles held reversible error.In prosecution, under information charging larceny of particular Ford coupé, and receiving it with knowledge of its being stolen, admitting testimony dealing with theft of many different automobiles held reversible error.

COUNSEL

Stuart & Huntley, W. K. Zewadski, Jr., and Wm. C. Pierce, all of Tampa, for plaintiffs in error.

Fred H. Davis, Atty. Gen., And Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BROWN, J.

Plaintiffs in error, Emelio Suarez, Benigno Suarez, and Charles Naya were convicted in the criminal court of record for Hillsborough county upon an information charging the crimes of larceny and receiving stolen property, and were sentenced to five years' imprisonment.They seek by writ of error to review the judgment of conviction.

The original information in this case was filed on August 20 1926,...