author: STURGIS, District Judge. THORNAL, Justice

text:
    Albert KNIGHT, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida.
    Sept. 25, 1957.

      V. R. Fisher, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., Jos. P. Manners and David U. Tumin, Asst. Attys. Gen., for appellee.
   STURGIS, District Judge.

A jury found appellant, defendant below, guilty of incest committed upon the person of his daughter, a minor, whose testimony was not corroborated. The Criminal Court of Record in and for Hillsborough County (Grayson, J.) sentenced him to fifteen years in the state penitentiary. This appeal is from that judgment.

The prosecutrix claimed that her father committed the incestuous acts over a sixteen month period, except for a five month interval during which she lived in a Salvation Army home while pregnant and following delivery of a child admittedly sired by one other than her father. She was rigidly cross examined in respect to her mental condition and actions prior to, during and following the alleged incestuous acts. In an effort to develop an inference of animosity toward her father, she was asked if she had at a time prior to the alleged crime made representations to the effect that her father murdered her twin brother, and she denied doing so. To impeach this testimony and show animosity of the prosecutrix toward her father, the defense proffered testimony of two witnesses to the effect that she did make such representations. The refusal of the court to permit this testimony to go to the jury is assigned as error.

Several weeks after prosecutrix lodged the complaint she was committed to the Florida Industrial School for Girls at Ocala, where she developed a mental disorder resulting in transfer to a Tampa hospital for treatment, from which she was discharged on September IS, 1954 and returned to the Industrial School. The disorder recurred and on October 11 she was again placed in the Tampa hospital for treatment, from which she was discharged on November 1 and returned to the Industrial School. She promptly became violent, was adjudged insane, and on November S was committed to the state hospital for the insane at Chattahoochee, from which she was discharged the latter part of January 1955, approximately two weeks before the trial.

As part of its evidence in chief the state produced Mr. Forrest Orr, a psychologist in its employ at the Chattahoochee hospital. He was permitted to testify that while prosecutrix was a patient there he gave her certain tests resulting in a finding that her intelligence was in the high average to superior range. On cross examination he testified that he found her to be a person in great need of personal attention, and in the course of further cross examination the state’s objections were sustained to each of the following questions:

“Q. Is it further, from your examination as a psychologist and examining her, that she would go to great lengths to secure and get that attention?
“Q. Did you make a finding in that, and isn’t it your personal opinion right now, that she would even fabricate and .falsify in order to gain attention?
“Q. Didn’t you write a report then and in that report, didn’t you state that because of this girl’s great desire for attention that she would go to great length, even to the extent of falsifying and fabricating in order to secure it?”

These rulings were assigned as error.

As further evidence in chief the state produced Dr. Marshall C. Sexton, a psychiatrist in the employ of the state hospital, who over objection of the defense was permitted to testify that while the prosecutrix was a patient in the state hospital she complained to him of an incestuous relationship with her father; and over objection the doctor also testified that he injected her with sodium amytal, a drug commonly known as “truth serum”, having the propensity of making a person “more likely to tell the truth”, with the result that while under its effect she reiterated the complaint. Appellant insists that his assignment of error No. 20 presents for review the question of the competency of this evidence. The state pertinently argues that the assignment of error is distinguished more in the breach than in the observance of the rule prescribing the contents of assignments of error. See Johnston v. State, 29 Fla. 558, 10 So. 686; Berger v. E. Berger & Co., 76 Fla. 503, 80 So. 296; Kloss v. State, 95 Fla. 433, 116 So. 39; Dewey v. State, 135 Fla. 443, 186 So. 224; Mortellaro v. State, Fla., 72 So.2d 815; Redditt v. State, Fla., 84 So.2d 317. It is only because the fundamental rights of the individual are so seriously affected by this phase of the proceedings below that we are constrained to ignore appellant’s failure to comply strictly with the rule. This relaxation must not be interpreted as license or invitation for future violations of it.

Conviction of incest may be sustained upon the uncorroborated testimony of the prosecutrix. Mercer v. State, 83 Fla. 555, 92 So. 535. The implications of this principle make it imperative, however, that the accused be accorded every right designed by law to protect the liberties with which the citizen is clothed.

There is no direct precedent of this court relating to admissibility of testimony as to findings based on so-called truth serum tests. In the related case of Kaminski v. State, Fla., 63 So.2d 339, 340, decided November 14, 1952, the trial court was held in error for permitting a state witness merely to testify that he had taken a lie detector test, and absent any testimony as to the results of such test.

We find no authority recognizing either of such tests to the extent that would justify the courts in admitting testimony reflecting the results in rehabilitation or corroboration of a witness. In the case on review, as in Kaminski v. State, supra, the only purpose of the testimony elicited from the psychiatrist and psychologist was to rehabilitate the credibility of the pros-ecutrix. The state’s whole case depended upon her testimony and its credibility was subject to determination exclusively in the discretion .of the jury. As stated in the Kaminski case:

“ * * * there can be no doubt that in initiating the inquiry the prosecutor intended to leave in the minds of the jurors the impression that because the witness Newbold had voluntarily submitted to a lie detector test prior to the time of trial he was a man of veracity and hence was telling the truth from the witness stand, no matter how inconsistent his tale might appear to be to the jurors when compared with the testimony offered by other State witnesses.
“Can it logically be argued that the putting of the questions and the allowance of the answers under the circumstances prevailing at the trial did not have a direct and profound tendency to influence or prejudice the minds of the jurors against the defendants? * *
“It was not fair to place the defendants in the entrapped position that required them at their peril either to pursue the inquiry as to the nature of the results of the test or to be damned by the adverse impressions which naturally would be expected to flow from their failure to do so. The practical effect of the admission of the testimony, as fortified by the remarks of the trial judge when he overruled the objection, was to allow, by inference, the admission of damaging evidence that would not have been legally admissible had it been submitted directly. In a situation where the State’s whole case depended entirely upon the testimony of a witness whose credibility appears to have been seriously shaken not only by cross-examination but by evidence given by other State’s witnesses as well, the defendants should not have been placed in this intolerable position.
“(2) Whatever the guilt or innocence of the defendants may ultimately prove to be, there can be no escape from the fact that at the trial they were entitled to the presumption of innocence with which the law clothes all persons accused of crime until proven guilty beyond a reasonable doubt by legally competent evidence. The successful attempt by the prosecution by the means employed to implant in the minds of the jury the impression that because the witness had voluntarily submitted to a lie detector test prior to trial he must perforce be testifying truthfully in the course of the trial, resulted, in effect, in the substitution of a mechanical device, without fair' opportunity for cross-examination, for the time-tested, time-tried, and time-honored discretion of the judgment of a jury as to matters of credibility.”

Every postulate from this quotation has greater significance and applies with greater force in this cause. The expert witnesses were permitted not only to show that the so-called credibility tests were given the prosecutrix but gave their interpretation of the results as well. There is no scientifically recognized drug that inevitably causes its subject to speak the truth. The-so-called “truth serums”, including hyoscine hydrobromide, sodium amytal, evipan sodium, nembutal, scopolaimine, and sodium pentothal, are said to effect states of altered consciousness, so that the subject’s ability to associate thoughts and give them; inhibited expression is impaired; but m> such drug insures pure truth. It is said to produce merely an uninhibited state of mind in which the subject is prone to relate facts not deliberately altered. In 5 University of Florida Law Review 6 (1952) it is said:

“Along with those facts, however, fantasy unfolds; and here lies one of the greatest objections to the accuracy of the truth serum. Since the truth is. mixed with impressionistic creations, peculiar to the subject, the reliability of any truth serum testimony will depend mostly upon the examiner’s interpretive skill and experience. Without such experts, therefore, there is not even a scientific acceptance of the serum’s reliability. Moreover, in order for truth serums to bridge the experimental-demonstrable gap, there must be a showing that while the subject is-under the influence of such drugs there can be no intentional fabrication. The courts so far have indicated a distrust for the assertion that the subject has-no control over his utterances, by regarding statements made under influence ,of the drug as merely self-serving declarations.”

In State v. Hudson, Mo.1926, 289 S.W. 920, 921, which appears to be the first American case to consider such drugs, the court observed:

“Testimony of this character — barring the sufficient fact that it cannot be-othei wise classified than as a self-serving declaration — is, in the present state of human knowledge, unworthy-of serious consideration. We are not told from what well this serum is drawn or in what alembic its alleged truth-compelling powers are distilled. Its origin is as nebulous as its effect is uncertain. A belief in its potency, if it has any existence, is confined to the modern Cagliostros, who still, as Balsamo did of old, cozen the credulous for a quid pro quo, by inducing them to believe in the magic powers of philters, potions and cures by faith. The trial court therefore, whether it assigned a reason for its action or not, ruled correctly in excluding this claptrap from the consideration of the jury.”

The term “truth serum” is a misnomer. There is no specific serum which will cure or reveal deception or infallibly induce truth. While scientific developments confound the most skeptical, the fundamental rights of the individual should not be jeopardized by precipitate acceptance of devices that smack too closely of brainwashing. We agree with State v. Lindemuth, 1952, 56 N.M. 257, 243 P.2d 325, 336, in which it is said:

“Until the use of the drug as a means of procuring the truth from people under its influence is accorded general scientific recognition, we are unwilling to enlarge the already immense field where medical experts, apparently equally qualified, express such diametrically opposite views on the same facts and conditions, to the despair of the court reporter and the bewilderment of the fact finder.”

The view we adhere to was followed in the recent case of Lindsey v. United States, 9 Cir., 237 F.2d 893, 895, decided May 7, 1956, in which the trial court was reversed for having permitted the government to attempt to rehabilitate the prosecutrix who was chief witness for the government in a prosecution for statutory rape and sodomy. To accomplish that end the government called .a psychiatrist who was permitted to testify, on the basis of a complete clinical examination including batteries of psychological and personal tests and a sodium pentothal test, that in his professional opinion the girl was telling the truth when she repeated on direct examination the charges originally made by her. The court said :

“Here the Government’s witness was subjected to psychiatric examination for the avowed purpose of determining whether the story originally told the authorities was the truth. Obvious motive existed then to repeat that story. So if the original story were indeed a fabrication, it would be unreasonable to hold that motive did not exist to fabricate during the test insofar as will could assert itself.”

This observation is equally applicable to the case on review.

The psychologist, Mr. Orr, having been allowed to testify, the right of cross examination should not have been restricted by refusing to permit him to answer the questions hereinbefore quoted in regard to the findings and the report thereon as made by the witness. Cross examination of a witness upon the subjects covered in his direct examination is an invaluable right which stems from the constitutional right of the accused to be confronted by his accusers. Coco v. State, Fla., 62 So.2d 892.

The use of the psychologist and the psychiatrist, for the sole purpose of shoring up the testimony of the chief witness for the prosecution, is hardly distinguishable from trial by compurgation, — the test based on who “gits thar firstest with the mostest.” Justice is not at war with the citizen.

For the reasons stated, the judgment appealed from is reversed and a new trial awarded.

TERRELL, C. J., and HOBSON and DREW, JJ., concur.

THORNAL, J., concurs with opinion.

THORNAL, Justice

(concurring).

I concur in reversal for the reasons so cogently expressed in the opinion prepared by Mr. Associate Justice STURGIS. My own conclusion, however, is influenced by the additional fact that the brief of the Attorney General for the State concedes that the testimony relating to truth serum tests would not have been held admissible by the courts of any state. A verbatim quotation from the brief of the appellee is the following:

“The State is in accord and recognizes that most authorities realize certain short-comings in the use of such drugs. By the reduction of a person’s critical senses, the drug often results in an outpouring both of truth and fantasy equally, thereby making the use of such testimony quite questionable. See S University of Florida Law Review 6 and 14 University of Chicago Law Review 601. The State also recognizes that truth serum tests occupv much the same position as lie detector tests, and no court has as yet recognized the admissibility of the results of such tests. See 23 A.L.R.2d 1306, at page 1310.”

While we are requested to view the admission of this testimony as harmless error, it appears to me that it could hardly be considered harmless when the mental capacity, competency and veracity of the prosecutrix were in issue and the highly objectionable testimony was employed to support her mental capacity and veracity. Under such circumstances it would seem that the State’s concession that the permitted testimony would be considered improper by every court in the land is for all practical purposes a confession of error.

TERRELL, C. J., concurs.


source: Caselaw Access Project

author: THOMAS, Justice.

license: Public Domain

text:
    Frieda ZIMMERMAN, Appellant, v. George S. DIEDRICH, Appellee.
    Supreme Court of Florida.
    Sept. 20, 1957.

      Johnson & Johnson, West Palm Beach, ¡for appellant.
    Adams, Phillips & Hathaway, West Palm Beach, for appellee.
   THOMAS, Justice.

We are considering an appeal from a •decree of the chancellor granting the ap-pellee’s motion to dismiss appellant’s complaint, brought against the appellee “and - Diedrich, his wife, if living,” by which a decree for specific performance was sought.

In the pleading it was averred that the appellant and appellee entered into a contract for the sale by the. appellee, and the purchase by the appellant, of certain property described as “The South 10 acres, more or less, of the South Three Quarters of the West Half of the Southwest Quarter of the Northeast Quarter, of Section 25, Township, 43 South, Range 42 East” for the sum of $22,000.

It was further alleged that the appellant deposited with , a real estate broker one-tenth of the purchase price and that the appellee delivered tó the appellant an .abstract of title to the property from which the appellant’s attorney determined that the title was 'marketable. Thereupon, according to the allegations of the complaint, the appellant notified the appellee that she was prepáred to consummate the sale.

The appellant charged that, at the outset, the: appellee represented that he was a widower, but upon, .being advised that appellant wished to close the transaction changed his story of celibacy and told the appellant he was married and that his wife refused to join in the conveyance.

The chancellor concluded that the contract was not enforceable by specific performance because of failure to comply with Sec. 689.01, Florida Statutes 1955, F.S.A., since the signature of but one witness appeared upon it, and he commented that in his opinion the requirements of this statute are supplemental to those of Sec. 725.01, Florida Statutes 1955, F.S.A. Furthermore, he considered the contract defective because the time of payment of the third, and last, note evidencing the balance of the purchase price was not specified.

With this introduction we approach a solution of the first problem presented by the appellant, namely, whether or not a contract “for the sale of realty, not homestead,” must be executed in accordance with both the cited statutes to entitle the prospective buyer to the remedy of specific performance in the event the owner fails to keep his promise.

The question is particularly troublesome because we cannot find in the record any justification for the qualification that the property in question was not being occupied as a homestead, and the point is further beclouded by the allegations, to which we have already referred, about the inconsistent statements of the appellee as to liis married or unmarried state. From a careful study of the appropriate statutes- and the decisions dealing with them, we have the view that a decision whether or-not appellant can secure the interest of appellee must depend on the character of the use of the property at the time the parties contracted.

The appellant insists that compliance only with Sec. 725.01, supra, is necessary and that this court so held in Lente v. Clarke, 22 Fla. 515, 1 So. 149, 151, when it was stated that- Sec. 1, page 214 of McClellan’s •Digest related to present conveyances of title of certain interests in land “and not to agreements or contracts to convey the same in the future.” This was the law that has now become, with certain changes to which we will presently refer, Sec. 689.01, supra. In that case Sec. 1, page 208 of McClellan’s Digest was said to require neither witnesses nor a seal to a contract in order to hold the person to an obligation to convey in the future. This section was the predecessor of Sec. 725.01, supra.

It is true that in the case of Hammond v. Hacker, 93 Fla. 194, 111 So. 511, cited by appellant, signatures to the instrument involved were witnessed by only one person but it was purely by inference that the case held the execution of the contract sufficient for the pivotal point was the adequacy of the description, and the question of proper attestation was not directly presented or decided. In another case, Simons v. Tobin, 89 Fla. 321, 104 So. 583, also cited by appellant to support her position that no witnesses to a contract for deed are needed to render the instrument enforceable by specific performance, the question of lack of witnesses was not raised but the court held that a contract formed by an exchange of letters and telegrams'! could be specifically enforced. We agree with the appellant that in these circumstances names of witnesses would not appear. The law announced in Simons v. Tobin, supra, had been the holding in Meek v. Briggs, 80 Fla. 487, 86 So. 271.

All the decisions to which we have alluded were rendered prior to the year 1941 when, as the appellant candidly advises us, the legislature amended Sec. 689.01, supra, by substituting the word “instrument” for the word “deed”. The question then arises whether or not the substitution amounted to a requirement that all contracts for deed, as well as deeds, be executed in the presence of two witnesses.

We advert to three decisions rendered by this court, after the adoption of the amendment, which the appellee contends support the view of the chancellor that more formality in the execution of agreements for deeds, in order to make therm specifically enforceable, was made necessary: Scott v. Hotel Martinique, Inc., Fla., 48 So.2d 160; Abercrombie v. Eidschun, Fla., 66 So.2d 875; and Cox v. La Pota, Fla., 76 So.2d 662.

In the first of these three cases, Scott v. Hotel Martinique, Inc., supra, the court held that a contract for sale of homestead property could be specifically enforced if executed by the husband and wife in the presence of two witnesses. The court referred to the opinion in Jacobs v. Berlin, 158 Fla. 259, 28 So.2d 539, in which it was written that part of the premises involved constituted a homestead and there could be no specific performance to convey that part, and inasmuch as the part that was homestead could not be isolated, the bill for specific performance was properly dismissed. Obviously the court recognized a distinction between the prerequisites of a contract to convey homestead and non-homestead property, in or-' der to make the contract enforceable by specific performance.

In the second case, Abercrombie v. Eidschun, supra, the court again dealt with homestead property and held that the chancellor erred when he denied a motion to dismiss a complaint in which was sought specific performance of a contract which had not been acknowledged and to the signatures of which there was but one witness.

In the third case, Cox v. La Pota, supra, the court again considered a contract to sell homestead property and it was held that the sellers were estopped to deny that the contract was enforceable since they had signed it and surrendered it to their own broker for the purpose of obtaining the signatures of witnesses before forwarding the instrument to the purchasers, and by their action had caused the buyers to expend money and materially change their position. The only statute cited in the opinion was Sec. 689.01, supra. But it is plain from a study of expressions of this court on the subject, and especially from the very decision, Scott v. Hotel Martinique, Inc., quoted at length in Abercrombie v. Eidschun, supra, that the controlling law was Secs. 1 and 4 of Article X of the Constitution, F.S.A. The court observed that Sec. 708.07, supra, when amended “did not dispense with the requirement of two subscribing witnesses but only with the formal requirement of acknowledgment.”

Before the amendment in 1947, Sec. 708.07, supra, which was titled “Specific performance against married woman,” contained the provision that coverture should not prevent a decree of specific performance against husband and wife of an agreement to sell her property or relinquish her right of dower but that no such contract could be “enforced unless * * * executed and acknowledged in the form prescribed for conveyances of her real property and for relinquishment of dower.” So at this place in the history of the legislation a contract to convey a married woman’s separate estate or to relinquish her dower had to bear her separate acknowledgment, Sec. 693.03, Florida Statutes 1941, F.S.A. At the time it was also the law of the state that an estate or interest of freehold could not be created or granted save by an instrument in writing “signed in the presence of two subscribing witnesses * * Sec. 689.01, Florida Statutes 1941, F.S.A.

To summarize, two witnesses were necessary to the validity of all conveyances and in addition a separate acknowledgment was required when the separate estate of a married woman was being transferred or her dower was being relinquished, and, to repeat, a contract so to convey or relinquish had to be executed with the same formality.

The necessity of separate acknowledgment of married women to their deeds and contracts was eliminated by amendment in 1943 of Sec. 693.03, supra.

In 1947, Sec. 708.07, supra, was amended by substituting for the requirement that a contract to convey a married woman’s separate property or to relinquish her dower be executed and acknowledged in the manner prescribed for conveyance of such property and relinquishment of dower the provision that coverture would not prevent a decree for specific performance of the contract “regardless of whether the same [was] acknowledged or not.”

From an examination of the cases cited by the appellee, it is plain that the court purposed to require as much formality in the execution of contracts for the sale of homestead property as must be followed in the execution of contracts for the sale of the separate property of a married woman or the relinquishment of her dower in order to make the agreements enforceable by specific performance.

This is apparent from the blending in the opinions of the provisions of Secs. 1 and 4 of Article X of the Constitution and the provisions of Sec. 708.07, supra, before and after it was amended. This statute relates to coverture as an impediment to decrees for specific performance against a husband or wife, or both, for the sale of the property of the wife or the relinquishment of her right of dower. Before the amendment such a contract had to be executed in the presence of two witnesses and acknowledged by the wife; after the amendment an acknowledgment was no longer necessary. If the statute is construed literally, it does not apply to homestead property. But the court seems to have resorted to this statute as the one defining the manner in which alienation could eventually be accomplished by an instrument “duly executed” as specified in Sec. 4 of Article X of the Constitution. It is true that in that section no mention is made of contracts to sell, but only of deeds and mortgages. We apprehend that the writers of the opinions had in mind that if the execution of contracts to sell homesteads were not so formalized, the transfer of homestead property, sacrosanct as it is, could be eventually effected by decree of specific performance, although the contract forming the basis of such a transfer would have small resemblance to the formality with which it was intended that conveyances of homesteads should be accomplished.

We think that Sec. 689.01, supra, applies , to conveyances as distinguished from contracts to convey, but in Cox v. La Pota, supra, the writer referred to that statute in determining what was necessary to an enforceable contract to convey a homestead.

In fine, we conclude after a careful study of the Constitution and the decisions, and the statutes cited in the decisions, that the court meant that agreements to convey homestead property must, to be specifically enforceable, be signed in the presence of two witnesses as required by Sec. 689.01, supra, for valid conveyances, and by Sec. 708.07, supra, for enforceable contracts to convey the separate property of married women and to relinquish dower.

We return to the chancellor’s view that the two statutes, Secs. 689.01 and 725.01, supra, must be read together and that therefore two witnesses to signatures on contracts for deed are in all cases a prerequisite to the remedy of specific performance. We cannot agree that if the latter statute is followed, the contract would yet be unenforceable unless the former is followed also. Such a ruling would be inconsistent with the decision that a contract could be formed by correspondence, signed by “the party to be charged,” as was held in Meek v. Briggs and Simons v. Tobin, both supra [80 Fla. 487, 86 So. 272].

The decisions in these two cases have not become inapposite by the passage of the 1941 amendment to Sec. 689.01, supra, because as late as 1952 in the case of Mehler v. Huston, Fla., 57 So.2d 836, this court held, as it had in Meek v. Briggs and Simons v. Tobin, both supra, that contracts growing out of an exchange of correspondence could be specifically enforced.

So we disagree with the chancellor on this point if, so far as now appears, no_ \ decree is sought affecting a homestead or-separate property of a wife, or dower.

We conclude after an earnest effort to reconcile decisions with statutes and with-each other that a contract for sale of realty must, to be enforceable, bear two> witnesses if the property to be conveyed is. homestead, or the separate property of a married woman, or if the relinquishment of dower is to be effected; that the two statutes first cited do not implement each other in all instances.

The chancellor thought that the contract could not be enforced because of the indefiniteness of the time the buyer waste meet the last payment but now, again,, we must disagree. The total amount of the-purchase price was expressly stated, $22,-000, and one-half of that amount was to be-paid in cash. This left a balance of $11,-000. It was stipulated that the remainder was to be paid “in two (2) annual notes of three thousand six hundred sixty-six and 66/100th ($3,666.66) and the third (3rd) in the amount of three thousand six hundred sixty-six and 68/100th ($3,666.68) * * True, the provisions for the deferred payments were inartificially expressed, but we-think it is not necessary to torture the-language to construe it to mean that the-adjective “annual” was intended to apply to the third payment as well as the first, two. Fox v. Korshinsky, 97 Fla. 503, 121. So. 560.

In the study of this case we are confronted with a strange situation. The-motion to dismiss contained only one-ground, failure to state a cause of action.. Naturally the appellant did not raise here-'the question of the faulty -description in the-copy of the contract attached to the complaint. So far ás we are advised it was not until the appellee filed his reply brief in this, court that he raised the point. We cannot, tell from the motion whether or not this-matter was argued, and the chancellor did. .not mention it in his decree. Eut we are- ' disposed to comment upon it.

The description in the complaint we quoted in the beginning is not the same as the description in the agreement. The one in the copy of the contract was:

“Ten (10) acres more or less fronting on Military Trail and running to the East of the plat of land recorded in the Palm Beach County Court House under the name of the owner, George Diedrich. The ten (10) acres mor- or less of the South % of West of the Southwest of the Northeast 14 are located in Section 25, Township 43 South, Range 42 East, Palm Beach County, Florida.”

The obvious variance between the description of the property in the complaint and in the copy of the contract made a part of the complaint should receive the earnest consideration of the chancellor as he proceeds with the cause in accordance with the views we have expressed.

Reversed.

TERRELL, C. J., and ROBERTS, THORNAL and O’CONNELL, JJ., concur.


author: ALLEN, Judge.

text:
    STATE of Florida, Petitioner, v. Arthur Ray ATWELL, Respondent.
    No. 47.
    District Court of Appeal of Florida. Second District.
    Sept. 25, 1957.
    Rehearing Denied Oct. 16, 1957.
    R. B. Huffaker, State's Atty., Tenth Judicial Circuit, Bartow, Clifton M. Kelly, County Solicitor, Lakeland, and Monte J„ Tillis, Jr., Asst. County Solicitor, Bartow, for petitioner.
    L. D. Oxford (of Oxford & Oxford), Lakeland, for respondent.
   ALLEN, Judge.

Arthur Ray Atwell, respondent here, was convicted in the Criminal Court of Record, Polk County, Florida, of driving an automobile while under the influence of an intoxicating liquor. The Judge of the Criminal Court of Record sentenced the respondent to be confined in the County Jail of Polk County, Florida, at hard labor for a term of 90 days and pay court costs.

An appeal was duly taken from said1 judgment and sentence and on May 6, 1955, the Circuit Judge before whom the appeal was argued, entered an order in said appeal which amended and modified the judgment and sentence of the Criminal Court Judge and provided that the respondent was to pay a fine of $100 in lieu of confinement.

A motion for rehearing was filed which the Circuit Judge denied, and on June 10, 1957, a mandate was directed to the Judge of the Criminal Court of Record commanding the Judge of said court to comply with the judgment of said Circuit Court.

Petition for certiorari was filed by the State of Florida, which, in effect, questioned the authority of the Circuit Judge to change the sentence of the Judge of the Criminal Court of Record.

It was held in the case of State ex rel. Krauss v. Chillingworth, 1924, 88 Fla. 468, 103 So. 120, that a Circuit Judge does not have the power to change a sentence of a Judge of the County Court, which decision would be also applicable to the sentence of the Judge of a Criminal Court of Record. As a matter of fact, it was not contended by the Respondent that the order of the Circuit Judge was valid in this case. The objections offered to the petition for writ of certiorari being primarily (1) that the writ should be denied because the State had the right to appeal from the Circuit Judge’s order and, therefore, certiorari would not lie. (2) That the judgment entered in the case by the Circuit Judge was not final and, therefore, certiorari would not lie.

Section 924.07, Florida Statutes 1955, F.S.A., provides the only grounds upon which the State may appeal in a criminal case. None of the grounds set forth therein are applicable in this case.

There is some logic in the respondent’s contention that the judgment of the Circuit Court was not final, but this court is of the opinion that the Judge of the Circuit Court would necessarily have had to affirm the conviction of the respondent in the Criminal Court of Record in order to have changed the sentence from imprisonment to a fine. The order of the court entered on the 12th day of May, 1955, stated:

“ * * * This Court is of the opinion that if the judgment of the trial court is affirmed, the appellant should be given the privilege of paying a fine in lieu of confinement, and it is ordered and adjudged that the judgment and sentence entered on June 22, A. D. 1954, in the Criminal Court of Record of Polk County, Florida, in Case No. 20140, be modified or amended in such manner and to such extent as to provide that Arthur Ray Atwell be required to pay a fine of $100.00, * * *»

must be construed as an affirmance of the trial court but with a change of sentence.

It is the order of this court that the motion to dismiss the petition and deny the writ of certiorari be denied.

It is further ordered that that part of the order of the Circuit Judge of Polk County changing the sentence of the lower court from imprisonment to a fine be quashed.

KANNER, C. J., and PLEUS, J., concur.


author: KANNER, Chief Judge.

text:
    Manuel GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 84.
    District Court of Appeal of Florida. Second District.
    Oct. 2, 1957.
    V. R. Fisher, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., Joseph P. Manners and Richard J. Brooks, Asst. Attys. Gen., for appellee.
   KANNER, Chief Judge.

The appellant was found guilty of breaking and entering an automobile with intent to commit a misdemeanor, to wit, petit larceny, and sentenced to two years in the state prison.

From appellant’s recital of points set forth as bases for appeal, the only questions which emerge as substantial elements for consideration by this court are to be found under his points number three and four, analyzed separately hereinbelow.

Point number three questions whether a conviction is final while on appeal and before the appellate court has ruled on the appeal. Prior conviction for purpose of enhancing punishment in a subsequent case is not here involved. The inception for question three is to be found in testimony elicited by the prosecuting attorney on cross-examination of appellant concerning his prior conviction of the offense of indecent exposure, after appellant had denied any prior conviction except for traffic violation. Appellant had appealed from the prior conviction and the case was still pending at the time of the trial of the instant case.

There appears to be no Florida case directly governing the matter of whether pendency of appeal on a prior conviction would preclude questioning with reference to such prior conviction as affecting credibility of the accused; but in certain other jurisdictions it has been determined that cross-examination of the accused as to a prior conviction is proper as affecting his credibility, although such conviction was pending on appeal. The reasoning is that a conviction extinguishes presumption of innocence and that the judgment of conviction holds fast as a final determination until such time as it might be reversed by the appellate court. This court is in accord with this rule of law. See 58 Am.Jur. section 745, p. 402; Annotations, 6 A.L.R. 1647f; 25 A.L.R. 348f; 103 A.L.R. 367f; Viberg v. State, 1903, 138 Ala. 100, 35 So. 53; and United States v. Empire Packing Co., 7 Cir., 1949, 174 F.2d 16, certiorari denied 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758. The trial court was therefore correct in permitting this line .of questioning.

Appellant’s point number four questions whether appellant was denied a fair trial through remarks of the prosecuting attorney in his concluding argument to the jury, claimed by appellant to be prejudicial, inflammatory, and improper. The portion of the concluding argument claimed to be prejudicial is here quoted:

“Mr. Parham: Now, is it reasonable? I don’t think it’s reasonable for a man to break into a car in the pitch dark of night at three o’clock in the morning. I don’t think it’s reasonable. I’m not trying to show that it’s reasonable for a man to go out here, a grown man, and commit a crime like that. I don’t think it’s reasonable for a grown man, over 200 pounds of him to go out here and exhibit himself to a bunch of women, either. I don’t think it’s reasonable and I don’t know why he does it — ”

Counsel for appellant objected vigorously to these remarks, moving immediately that the court declare a mistrial on the ground that they were prejudicial and inflammatory. The motion was denied bv the court, whereupon appellant’s counsel requested the court to instruct the jury to disregard the remarks. This .request also was denied. The prosecutor, by his concluding remarks, to which counsel for appellant had no opportunity to reply and which were not, according to the record, retaliatory to anything appellant’s counsel had said, introduced prejudicial coloring to the issue at bar, whether calculated or not, through the nature of his reference to the prior conviction. His remarks were fraught with inaccuracy and intimation; the comment, “I don’t know why he does it — ” employs the present tense and thus indicates or implies the offense as having continuity into the then present, and the words, “bunch of women”, were used although not supported by the record; and his statement “I don’t think it’s reasonable for a man to break into a car in the pitch dark at three o’clock in the morning” had a time implication not contained in the evidence relating to the -breaking and entering testified to- as being at about one o’clock in the afternoon. The appellant made timely objections. The overruling of appellant’s objections could have had the effect of accentuating the remarks of the prosecutor so that the jury could have interpreted the court’s ruling as an indication that it was proper for them to weigh these remarks in their consideration of the case.

The prosecuting officer properly functions in a quasi-judicial capacity with reference to the accused, and it is not alone his duty to prosecute but also to see that the accused is accorded a fair and impartial trial. The prosecutor’s remarks, with their overtones of implication, depicted with emphasis to the jury misconduct unsavory in nature so as to inveigh passion and prejudice against the appellant, even though it was unrelated in nature to the offense for which he was currently being tried. The trial court should have admonished the jury to disregard these remarks of the prosecuting officer. See Deas v. State, 1935, 119 Fla. 839, 161 So. 729; Gluck v. State, Fla.1952, 62 So.2d 71; Simmons v. State, 1939, 139 Fla. 645, 190 So. 756; Oglesby v. State, 1945, 156 Fla. 481, 23 So.2d 558; and Noeling v. State, Fla., 1949, 40 So.2d 120.

The judgment of the court below is reversed for new trial.

PLEUS and ALLEN, JJ., concur.


author: WIGGINTON, Judge.

text:
    Oscar S. BURKLIN, Appellant, v. Wilbur C. WILLIS, J. H. Green, Jack Osteen and William Sedden, as and constituting the Mayor, Councilmen and City Council of the City of Port Orange, Florida, Appellees.
    No. A-13.
    District Court of Appeal of Florida. First District.
    Sept. 24, 1957.
    Rehearing Denied Oct. 21, 1957.

      Robert L. Wilson, Daytona Beach, for appellant.
    E. W. Gautier, New Smyrna, for ap-pellees.
   WIGGINTON, Judge.

Appellant is a duly elected and acting member of the City Council of the City of Port Orange, having been elected to this office for a two-year term ending December 31, 1957. Until June 12, 1956, he also held the offices of Vice Mayor and Municipal Judge, these offices being held under authority of Section 5 of the City’s Charter, which provides that at its first meeting after the election of members the Council shall select one of their number as Vice Mayor who shall also serve as judge of the Port Orange Municipal Court. This section prescribes the powers and duties of these offices, but fixes no definite terms of office.

Having been duly selected to occupy the offices of Vice Mayor and Municipal Judge, appellant continued to perform the duties incident thereto until June 12, 1956. On that date the Council conducted a regular business meeting at the conclusion of which the Mayor^Councilman, in accordance with what he conceived to be his responsibility, read to the members a number of Municipal Court cases which the Mayor felt had been improperly handled and disposed of by the appellant. Several officers of the Port Orange Police Department were called before the Council and interrogated as to their views concerning appellant’s handling of the cases in question. At the conclusion of this discussion appellant was asked whether he had any statement or questions relating to the criticisms which had been placed before the Council. Appellant’s only statement was to the effect that he felt his actions were justified in all the cases involved. Without further formality a motion was made, seconded and adopted by a three to two vote, whereby appellant was summarily removed from the offices of Vice Mayor and City Judge and the offices declared vacant. This action was immediately followed by the adoption of a resolution filling the “vacant” offices by selecting one of the majority members of the Council to fill the office of Vice Mayor, and a third party to fill the office of City Judge. The entire foregoing proceedings were conducted without prior notice to appellant and without benefit of formal charges against him.

Thereafter appellant petitioned the Circuit Court of Volusia County for an alternative writ of mandamus commanding the rescission of the aforementioned resolutions and his re-instatement by the Council to the offices of Vice Mayor and City Judge, or that the Council show cause for not so doing. Upon answer by the respective Council members and a hearing thereon the court entered its final judgment dismissing the petition and taxing costs against appellant. The final judgment was based upon the court’s finding that the Council acted within its authority. It is from this order of dismissal that appeal is taken.

In defense of their action in -removing appellant from office, appellees argue that Section 1, Par. 9, of the City Charter sets forth the Council’s authority for the removal of an officer or employee of the -city, and further, under their interpretation -of the Charter, the appellant holds his appointive offices at the pleasure of the Council and can be summarily removed by a majority vote of the Council, without prior notice or opportunity to be heard.

Under the common law an officer ■could be removed only for cause and after notice and an opportunity to be heard. In the absence of statutory or constitutional provisions to the contrary, the common law rule prevails in this state. It is settled law that statutes designed to alter the common law must speak in clear and unequivocal terms and that the common law will not be changed by doubtful implications. While it has been held that the power of removal is incident to the power of appointment, and that removal may be effected at the discretion of the appointing authority, this rule is applicable only where the appointee holds office at the pleasure of such appointing authority.

Section 1, paragraph 9, of the Port Orange Charter relied upon by the appellee provides that an affirmative vote of a majority of the Council members present shall be necessary to adopt an ordinance or resolution * * * or take other official action for and on behalf of said City * * Clearly this language when measured by the foregoing rule of construction falls short of the conclusion urged by appellees. It cannot be said that such language so clearly and unequivocally abrogates the common law requirements as to negative the necessity for notice and hearing. It is pertinent here to note that Section 4 of the City Charter, as amended, provides for the appointment of a city clerk to serve “during the pleasure of the City Council * * No such provision is made with regard to the selection and term of Vice Mayor and City Judge. Had the Legislature intended that the occupant of these offices should serve at the pleasure of the Council, thereby permitting his removal without notice of hearing, it would have so provided.

Section 7 of the Port Orange Charter provides that in addition to the powers expressly granted therein the City Council shall be clothed with all powers and duties provided by the general statutes of the state for town councils. Section 165.18, Florida Statutes, F.S.A., which is a part of the general law of Florida relating to the organization and dissolution of municipalities, provides that two-thirds of the City Council may expel a member or officer of the city or town for disorderly behavior or malconduct in office. Appellant contends and we agree that this section is controlling in the case at bar.

A situation similar to the one here presented was before the Supreme Court of Florida in State ex rel. Gibbs v. Blood-worth. There the City Council summarily removed from office the City Clerk who was holding under appointment by the Council pursuant to the provisions of a City Charter similar to the one now before this Court. The City Clerk had no fixed term of office and there were no express Charter provisions setting forth the procedure for his removal. The Charter did provide, as does the Charter in the instant case, that all general laws of the state applicable to ¡municipal corporations and not in conflict with the city’s Charter shall be applicable to the city. The Supreme Court held that removal of the City Clerk had to he accomplished in accordance with the provisions of then Section 2948, C.G.L. (Section 165.18, Florida Statutes, F.S.A.). As to the Clerk’s term of office it was held to be clear that he was not to hold office subject to the “political whim” of the Commission. The Charter of the City of Port Orange having prescribed a two-year term for the Council members, it is not unreasonable to infer that a like term was intended for offices of Vice Mayor and City Judge to which Council membership was a prerequisite. In prescribing the procedure to be followed by a City Council in removing an officer under Section 165.18, the Supreme Court in the Bloodworth case re-affirmed the rule announced in Bryan v. Landis ex rel. Reeve, supra, to the effect that such proceedings should be conducted in a manner that will give the person charged notice and an opportunity to be heard in defense of any matters alleged against him; and, if the matters alleged warrant expulsion, and are supported by legal evidence the action taken by the requisite vote of the Council will not be disturbed by mandamus proceedings.

It is therefore our conclusion that once a member of the Council has been selected to occupy the office of Vice Mayor and City Judge under the provisions of the present Charter Act of the City of Port Orange, he may be expelled by a two-thirds majority vote of the Council only after due notice of the charges preferred against him, a fair opportunity to defend against such charges, and upon substantial proof of disorderly behavior or malconduct in office. The judgment of this Court is that the City Council acted beyond the scope of its lawful authority in summarily resolving to vacate the appointive offices held by the appellant. Accordingly, the judgment appealed from should be and the same is hereby reversed and the cause remanded for further proceedings consistent with this opinion.

STURGIS, C. J., and TAYLOR, A. J., concur.

      . Chapter 11088, Special Acts of 1925, as amended by Chapter 27830, Special Acts of 1951, as amended by Chapter 29457, Special Acts of 1953.

      . Sp.Acts 1925, c. 11088, § 4, as amended by Chapter 18812, Special Acts of 1937, as amended by Chapter 27829, Special Acts of 1951.

      . Bryan v. Landis ex rel. Reeve, 106 Fla. 19, 142 So. 650.

      . Bryan v. Landis ex rel. Reeve, supra.

      . Bryan v. Landis ex rel. Reeve, supra.

      . State ex rel. Gibbs v. Bloodworth, 134 Fla. 369, 184 So. 1.


text:
    Julia MILLER and Renick V. Smith, Appellants, v. Castner ROLFE, Appellee.
    No. A-16.
    District Court of Appeal of Florida. First District.
    Oct. 1, 1957.

      Massfeller & Stewart and Cobb & Cole, Daytona Beach, for appellants.
    Millard B. Conklin, Daytona Beach, for appellee.
   WIGGINTON, Judge.

Appellee as plaintiff vendor brought suit against appellants as defendant vendees for specific performance of a contract of purchase and sale of real property. On final hearing the Chancellor entered his decree awarding appellee certain money damages as a result of appellants’ breach of contract. It is from that decree this appeal is taken.

There is no dispute as to the material facts which must control the final disposition of the cause. Appellee Rolfe owned a house in Daytona Beach which he listed with a broker for sale. Appellant Miller, her husband, and Smith entered into a valid and binding contract of purchase and sale with appellee on March 23, 1954. It was agreed that a portion of the purchase price was to be paid by the conveyance to Rolfe of another house owned by appellant Smith, and a closing date was set. An abstract of title was furnished by Rolfe in accordance with the requirements of the contract. No question concerning the marketability of title to the property was raised by appellants prior to the date this action was begun. Appellants failed to appear on the date set for closing, and after formal written demand, continued to fail and refuse to make the payment agreed upon and necessary to close the transaction. Upon becoming satisfied that the vendees had no intention of performing their obligations under the contract, appellee Rolfe instituted suit against them on April 28, 1954, for specific performance.

In addition to the foregoing facts Rolfe alleged himself to be continually ready, willing and able to perform. Separate paragraphs of Rolfe’s prayer for relief requested the entry of a decree ordering and directing specific performance by appellants, or alternatively, a judgment for such damages as justice and equity demand.

During the pendency of this litigation in the lower court, and before any testimony was taken, Rolfe sold the property which formed the subject matter of the contract to a third person not a party to this cause. The fact of this sale was not revealed to appellants until December 16, 1954, during the taking of testimony before the special master. Appellants thereupon amended their answer to the complaint, alleging as an additional defense that Rolfe had sold the property pendente lite thereby rendering specific performance impossible. On final hearing appellants urged that the complaint be dismissed for lack of jurisdiction inasmuch as the voluntary sale of Rolfe’s property divested the court of power to grant any equitable relief to the plaintiff. Appellants further contended that if the only relief available to Rolfe was for breach of contract, they were entitled to a jury trial on the issue of damages in a court of law.

The Chancellor found that Rolfe had at ■all times remained in a position to perform the contract in question after default by appellants, through the date suit was instituted, and until the date on which he sold the property. Upon this finding the Chancellor concluded that the sale of the property by Rolfe to a third party during the .pendency of the cause was immaterial as a matter of law. It was further found from the evidence that Rolfe had suffered damages in the sum of $1,608 as a result of appellants’ breach of contract, and that amount, plus costs, was awarded.

Appellants have here assigned three errors allegedly committed by the Chancellor, only one of which we find necessary to consider, viz.: that the Chancellor erred in refusing to dismiss the cause for lack of jurisdiction when plaintiff by his own voluntary act precluded the granting of any equitable relief under the allegations set forth in the complaint, thereby depriving appellants of their right to a trial by jury on the issue of damages in a court of law. Appellee cross-assigned error and urges reversal on the ground that the Chancellor erroneously disallowed certain items of damages flowing from appellants’ breach of contract.

It is fundamental that a breach of contract gives rise to alternative remedies: (1) the injured party may elect to sue in an action at law for damages suffered as a result of the breach; or (2) he may elect to sue in equity to compel specific performance of the terms of the contract, and as an incident to granting such equitable relief the court may award such damages as the injured party may have suffered by reason of the defendant’s failure to perform. In the instant case the injured party, the vendor-appellee, elected to pursue the latter alternative and filed his complaint in equity for specific performance.

It is settled law that, having once acquired jurisdiction of a cause, equity will retain jurisdiction to grant complete relief and dispose of all matters in dispute. Furthermore, when necessary to assure complete justice between parties, an equity court may ascertain and award damages incidental to the main relief sought. And, when a cause of action within the jurisdiction of an equity court is commenced in good faith and thereafter, because of the acts of the defendant, it becomes impossible for the court to grant the equitable relief due the plaintiff the court may decree money compensation in lieu of such other remedy. It is equally settled that in a suit for specific performance equity cannot award damages for non-performance of a contract when the primary relief of specific performance cannot be decreed due either to the fault of the plaintiff, or to plaintiff’s failure to prove his right to the equitable relief sought.

We turn now to an examination of the record to determine whether appellee Rolfe proved his right to the equitable relief sought. An element essential to a successful suit for specific performance is the allegation and proof that plaintiff has been at all times in a position to comply fully with the terms and conditions of the contract on which he seeks to compel specific performance. In attempting to meet this requirement appellee Rolfe alleged in Paragraph X of his complaint that since the date of its execution he has, and will continue to hold himself in readiness to fully comply with all of the terms and conditions on his part to be performed under the contract. When submitting proof in support of the allegations in his complaint, Rolfe testified that on a date subsequent to the institution of the suit, but before any testimony was adduced, he sold the property in question to a disinterested third party. Thus, by his own testimony appellee disproved one of the essential allegations of his complaint and precluded a decree granting the equitable relief sought. Therefore, in the absence of grounds upon which equitable relief could be founded, the Chancellor was without jurisdiction to award incidental damages. This case falls squarely within the above stated rule that plaintiff’s failure to prove his right to equity divests the equity court of jurisdiction to award incidental damages.

Appellee’s remedy therefore is limited to a claim for damages, if any he suffered, in an action at law for appellants’ breach of contract. We are not here dealing with a mere technicality. Throughout the annals of our jurisprudence the right to trial by jury in actions cognizable at law, as guaranteed by the clear mandate of our Constitution, has remained sacred and inviolate, and although it may be waived by consent of the parties, it can neither be disregarded nor withheld by the court over the objection of a party vested with such right. On the issue of damages, appellants were entitled as of right to a jury trial in a court of law and, in the absence of a waiver thereof, they could not be deprived of that right.

On this state of the record the Chancellor properly could and should have on his own initiative or on motion of either party, entered an order transferring this cause to the law side of the court for jury trial.

Having thus decided the question raised by appellant the error assigned by appellee concerning the Chancellor’s failure to allow certain items of damages becomes moot.

It is, therefore, the judgment of this court that the decree appealed from be and the same is hereby reversed, and the cause remanded for further proceedings consistent with the views herein expressed.

STURGIS, C. J., and TAYLOR, Associate Justice, concur.

      . Clements v. Leonard, Fla.1954, 70 So.2d 840.

      . Wini & Lovett Grocery Co. v. Saffold Bros. Produce Co., 121 Fla. 833, 164 So. C81.

      . Supra Note 2; See also Taylor v. Florida East Coast Ry. Co., 54 Fla. 635, 45 So. 574, 16 L.R.A.,N.S., 307; W. B. Harbeson Lbr. Co. v. Geneva Mill Co., 116 Fla. 342, 156 So. 710.

      . Supra Note 2.

      . Lewis v. Yale, 4 Fla. 418, 437; Gentry-Futch Co. v. Gentry, 90 Fla. 595, 106 So. 473; Dowell v. Mitchell, 105 U.S. 430, 26 L.Ed. 1142.

      . Smith v. Kallio, 94 Fla. 895, 114 So. 666.

      . Rule 1.39, 1954 R.C.P. 30 F.S.A. Frierson v. Frierson, 110 Fla. 416, 149 So. 18.


author: PEARSON, Judge.

text:
    Sally PARKER, Appellant, v. Edward LeRoy PARKER, Appellee.
    No. 57-54.
    District Court of Appeal of Florida. Third District.
    Oct. 1, 1957.
    J. C. Adkins, Jr., Gainesville, for appellant.
    Moreh.ead, Forrest, Gotthardt, Greenfield & Greenberg, Miami, for appellee.
   PEARSON, Judge.

The appellant was the plaintiff-wife in a complaint for alimony unconnected with divorce. The appellee answered and counterclaimed for a divorce upon the ground of adultery. The final decree appealed from granted a divorce to the defendant-counterclaimant. The assignments of error present three objections to the proceedings: (1) that the evidence is insufficient to sustain a finding of adultery; (2) that the defendant-counterclaimant was barred by his own conduct from the relief sought; (3) that the trial court erred when it withdrew the privilege of plaintiff’s out of state counsel to practice before the court. The evidence was examined in the light of these questions and the decree appealed from is affirmed.

In the complaint the plaintiff charged acts of cruelty and also alleged that the defendant forced her to leave the marital home. In his answer the defendant admitted jurisdiction and the marriage, but denied the other allegations of the complaint. An amended counterclaim charged the plaintiff with adultery occurring almost two years after the separation of the parties. The charges were denied by answer to the counterclaim and thereafter plaintiff filed an amended complaint charging defendant with adultery occurring at about the same' time. ' The chancellor found that the charges contained in the amended counterclaim were proved and that those contained in the -complaint and amended complaint were not proved. During the trial of the cause the plaintiff was represented by local counsel and a firm from New York City. Several depositions were taken before the trial by the plaintiff largely upon the financial position occupied by the defendant. At the trial the out of. state counsel proceeded with this line of investigation and refused the court’s sug-' gestión that first the plaintiff should proceed with the establishment of a prima facie case. After this refusal the court withdrew the privilege previously granted to the out of state counsel to practice before the court and requested local counsel to proceed with the cause. Thereupon plaintiff requested that the trial be continued to a later date, and this was done. Several months later the recessed trial was resumed and the same out of state firm represented the plaintiff. The plaintiff’s case was conducted by a partner in the same firm but not by the partner whose privilege to practice before the court had previously been revoked.

The 31 F.S.A. Integration Rule of The Florida Bar as amended and as adopted by the Supreme Court of Florida on December 6, 1955, Article II, Section 2, provides as follows:

“No person shall engage in any way in the practice of law in this state unless such person is an active member of The Florida Bar in good standing except that a practicing attorney of another state, in good standing, who had professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose' of such business only, when it is made to appear that he has associated' and appearing with him in such business an active member of The Floridá Bar.”’

Further, Section 454.11, Florida Statute? 1955, F.S.A., provides as follows:

“Every attorney duly admitted or authorized to practice' in' this state shall have the right to appear before any court of the state, or any public board, committee, or officer iri the interest of any client, and may appear as amicus curiae -when so permitted. All attorneys shall be deemed officers of the court for the administration of justice, and amenable to the rules and discipline of the court in all matters of order or procedure not in conflict with the constitution or laws of this state.”

The right of an attorney of another state to practice is permissive and subject to the sound discretion of the court to which he applies for the permission. The right to revoke this permission is inherent in the right to grant it. The attorney of another state accorded this privilege is subject to Section 454.11 above quoted. He therefore is amenable to this rule and discipline of the court in all matters of procedure. The attorney, whose privilege was revoked, declined to make himself amenable to said order of the court. An examination of the record does not reveal that the chancellor acted capriciously or that the plaintiff was prejudiced.

The evidence which the chancellor found to prove the adultery of the plaintiff consisted in part of the testimony of a private detective. It is true that the testimony of hired detectives should be scrutinized with great care. 27 C.J.S. Divorce § 139(4), p. 744. This testimony was supported on some points by the testimony of the wife of the private detective who was also a witness. In addition, the record reveals that the plaintiff testified to circumstances which in themselves support the finding of the chancellor. Without discussing the particulars of the evidence, it is sufficient to point out that the testimony of the private detective did not stand alone, and there is sufficient evidence to support the finding of the chancellor on appeal.

“The rule approved by the weight of authority is that if the circumstances proven are such as to lead the guarded discretion of a reasonable and just man to the guilt of the participants that is sufficient.” Heath v. Heath, 103 Fla. 1071, 138 So. 796, 82 A.L.R. 537; McMillan v. McMillan, 120 Fla. 209, 162 So. 524, 525.

It is urged that the defendant-counterclaimant was barred by his own conduct from the relief sought in his counterclaim. The plaintiff does not contend, nor does the record reflect, that the defendant was in any way responsible for the adulterous acts of the plaintiff. The appellant in her bill of complaint charged that the defendant was guilty of extreme cruelty. In an amended bill of complaint she charged him with adultery. The chancellor found that she failed to establish either of these grounds. The evidence is susceptible to interpretations for or against either party. Conflicting testimony and the credibility of witnesses are matters for the chancellor to decide. Spinella v. Spinella, Fla.1952, 57 So.2d 588.

The appellant has- filed a petition for attorney’s fees in this court. From a consideration of the record in this cause, it is apparent that substantial questions were presented for review. The plaintiff is allowed an additional fee of $250 for the services rendered by her attorney upon this appeal. An appropriate order so providing may be entered.

The decree appealed from is affirmed.

Affirmed.

CARROLL, CHAS., C. J., and HORTON, J., concur.


author: ICANNER, Chief Judge.

text:
    Edward Keith SALTER, Appellant, v. C. J. KNOWLES, Dr. H. S. Knowles and Tim Knowles, Appellees.
    No. 2.
    District Court of Appeal of Florida. Second District.
    Sept. 25, 1957.

      Nixon Butt, Orlando, for appellant.
    W. F. Robinson, Leesburg, and Maguire, Voorhis & Wells, Orlando, for appellees.
   ICANNER, Chief Judge.

The appellant sought to recover realtor-broker’s commission, but suffered adverse judgment from which this appeal is taken.

Appellant in his complaint, as basis for recovery, relied on the contractual proposition that he rendered services as a broker to appellees in producing a purchaser ready, able, and willing to buy at a price acceptable to them. The cause was submitted, without jury, to the trial judge for his determination of the case on its merits based upon the record.

Without reciting evidence on either side, summary of appellant’s position is that he was the procuring cause of the sale.

The question, whether a broker is the procuring cause of a sale, depends upon the facts and circumstances surrounding and attendant upon each particular case; and in order to recover, it is incumbent upon the broker to prove by a preponderance of the evidence the material allegations laid in his complaint. The trial court found against the appellant, and in so doing made the following specific findings as predicate for his judgment in favor of ap-pellees :

“1. That the plaintiff was employed by the defendants to find a purchaser at a fixed price of $125,000.00, which was not done and which precludes plaintiff from recovering;
“2. And even if the plaintiff’s view is taken that the plaintiff was employed to find a purchaser at a price acceptable to defendants, that there was a lack of continuous negotiation;
“3. And that plaintiff was not the procuring cause of the sale made to A. G. Bush;
“4. And that many new elements entered into the negotiations at the actual closing of the sale to A. G. Bush.”

It is a well established rule under Florida jurisprudence that every presumption favors the correctness of the judgment of the trial court, and the one who complains of error must make such error clearly appear; nor is it within the province of an appellate court to substitute its judgment for that of the trial court unless the findings are clearly against the weight of the evidence.

The evidence amply established basis for entry of judgment for appellees. Accordingly the judgment of the court below is affirmed.

PLEUS and ALLEN, JJ., concur.


author: PLEUS, Judge.

text:
    Monty ENGEL, Alvin S. Engel and Norman D. Engel, Appellants, v. Jessie ENGEL, Individually and as Executrix of the Last Will and Testament of Isador Engel, also known as I. Engel, deceased, Appellee.
    No. 4.
    District Court of Appeal of Florida, Second District.
    Sept. 25, 1957.
    Burns, Middleton, Rogers & Farrell, West Palm Beach, for appellants.
    Warwick, Paul & Warwick, West Palm Beach, for appellee.
   PLEUS, Judge.

The appeal is from a final decree adjudging that a certain piece of property in Palm Beach County, Florida described as Lot 29 of a certain subdivision bearing municipal number 1581 North Ocean Boulevard, Palm Beach, Florida, was not the homestead of Isador Engel at the time of his death and hence passed by his will to his widow.

Plaintiffs below are appellants here and brought suit for a declaratory decree seeking to establish that said property was the homestead. They are the three sons of the testator by a prior marriage and the defendant is their stepmother and the widow of the testator as well as executrix of his last will and sole devisee and legatee thereunder.

The only question necessary for a decision of this cause is whether or not the said property was the homestead of the testator.

It is admitted that the property upon which is located a dwelling house was initially purchased by plaintiffs and that title was taken in the plaintiff Norman Engel; and that thereafter and on December 3, 1947 the testator father purchased the premises taking a deed from Norman. It is likewise admitted without controversy that the domicile of the testator was Palm Beach County, Florida at the time of his death and the facts conclusively shown from the record are .as follows:

1. At the time of the purchase in 1947 the testator and his wife (to whom he had been married for approximately twenty years at the time' of his death) had been customarily spending part of each year prior thereto in Palni Beach but were then residents of Chicago, Illinois living in an apartment there. Following the purchase the customary sojourn was had during the winter seasons usually for the months of December and January.

2. On March 5, 1951 while in West Palm Beach the testator there executed the will involved in which he recited himself as being of both the cities of Palm Beach and of Chicago. He did, however, direct that he be buried in West Palm Beach.

3. On November 1, 1951 the testator sold the lease he had on his Chicago apartment and from then until sometime in December 1951 he and his wife resided in the Belmont Hotel in Chicago, coming to Florida in December of 1951. Following this he made business and pleasure trips to Chicago usually staying at the Belmont Hotel and eventually retired from business —the record indicating this to have taken place sometime in 1952.

4. Upon receiving a statement for dues from his Temple in Chicago for the fiscal year beginning September 1, 1951 he wrote as follows:

“ ‘Very sorry’ will not be here as I expect to make home in Fla. and will join Temple there.”

This statement had been addressed to his Chicago address.

5. On December 10, 1952 testator obtained his Florida automobile driver’s license for the year 1953 giving as his address the same property above mentioned; and on October 5, 1953 a renewal driver’s license for the year 1954 was obtained with the same address being shown.

6. On February 10, 1953 testator registered to vote in Palm Beach County, the registration certificate showing that he was a freeholder and that his address was 1581 North Ocean Blvd. In this registration certificate he stated under oath that he had been a resident of Palm Beach County for six months and of the State of Florida for twelve months.

7. On February 12, 1953 testator filed an application and proof of right to tax exemption for the exemption of the particular property involved on account of its being a homestead and in said application he stated that “I reside on the above property and in good faith make the same my permanent home and do hereby declare that I am a bona fide legal resident of the State of Florida.” He also wrote as his permanent address the house number of the property involved.

8. On March 24, 1953 testator wrote a letter to a club in Chicago resigning therefrom as of March 31 of that year and stated in said letter “The reason for this is we will make our permanent (sic) home in Palm Beach Fla. so if I have anything coming you can send check to 1581 No. Ocean Blvd. Palm Beach Fla. * * *”

9. On November 26, 1953 the testator died in the house located on the premises involved and the certificate of death by the attending physician under date of November 27, 1953 showing defendant-appellant widow as the source of the information stated the deceased’s usual residence as 1518 North Ocean Blvd., Palm Beach, Florida and that testator was buried in Woodlawn Cemetery, West Palm Beach, Florida on November 30, 1953.

10. On December 18, 1953 petition for probate of the will was filed in the County Judge’s Court of Palm Beach County by the defendant widow under oath specifically stating that the testator had died while a resident and citizen of Palm Beach County, Florida and stating petitioner’s residence as 1581 North Ocean Boulevard, Palm Beach, Florida.

11. On September 1, 1954, defendant widow as executrix filed a report and inventory on testator’s estate sworn to by her showing the value of the “furniture and furnishings and personal property located in the home place at 1581 N. Ocean Boulevard, Palm Beach, Fla.” and likewise listing as real ' estate the “Home place located at 1581 N. Ocean Blvd. and described as follows: (legal description).”

12. On January 23, 1956 when defendant widow testified, she was still residing in the same home as her place of abode.

Defendant put in evidence as bearing upon the intention of the testator certain conversations to the effect that the testator had only, acquired the property in the first place to assist his sons; that it was too large a property for him and his wife to handle; that he had decided to obtain and had actually taken steps to obtain a smaller property primarily of an income producing nature; and finally, the testimony of the widow attempting to show a lack of intent to make the premises their permanent home. We disregard the latter in the face of her positive statements and actions since the death.

Under the provisions of Article 10, Sections 1 and 2 of the Constitution of Florida, F.S.A., and under Sections 731.05(1) and 731.27, Florida Statutes 1955, F.S.A., the applicable decisions and the proper construction to be placed thereon, was the property involved the homestead of the testator at the time of his death ?

We have concluded that it was and that the court below erred in holding otherwise. Such holding was based upon a misapplication of the requirement of “permancy” in order for the attributes of a homestead to attach. Such permanency does not mean, any more than it does in our concept of domicile, that there must be an avowed and conclusive intent to forever remain in a given place of abode, eternally or even “until death do us part”. The only proper concept of permanency when used in this sense means the presence of the intention to reside at that particular place for an indefinite period of time. Dissatisfaction with one’s original bargain in purchasing and vague and floating and conditional possibilities of acquiring another place of abode are not sufficient to overcome the irresistible conclusion that must be drawn from the actual overt acts above detailed. Too much reliance was placed by the court below on the use of the word “will” in the letter written by the testator upon resigning from his club March 24, 1953. The use of this word connotes-present volition and determination and not futurity. By the time this letter was written his domicile and residence and homestead were already established facts. Nothing thereafter occurred to alter the fact of this property being his homestead at the time of his death the next November.

We apply the same criteria as would have been applied if a creditor had sought a forced sale of the premises involved and the testator had asserted his homestead exemption. No court would ever have held that it was otherwise than exempt.

This holding we submit is consonant with the decisions applicable from the landmark case of Smith v. Croom, 1857, 7 Fla. 81 to and including the most recent expression of the Supreme Court in Bloomfield v. City of St. Petersburg Beach, Fla.1955, 82 So.2d 364. Throughout these decisions whether speaking of domicile or residence and whether treating them as synonymous or not, the basic thought is that a man’s home is where he makes it and that he intends to-make it where he in fact does.

Neither the mere expression of an unrealized desire for the future nor the voicing of regret for the past nor the initial motive actuating the original acquisition can alter the legal consequences inevitably attendant upon the established facts.

Were we to decide otherwise “Our Legal' Chameleon”, already unsteady on its-present perch and capable of changing color all too often would be given the additional attribute of oscillating hereafter with each doubtful ascertainment of "intent” based upon all the hazards and uncertainties inherent in attempting to read into a dead man’s mind a mental state wholly inconsistent with his affirmative acts and deeds.

In view of this holding we deem it unnecessary to pass upon the assignments of error resting upon the admissibility of certain testimony under the so called Dead Man’s Statute, Section 90.05 Florida Statutes 1955, F.S.A.

We therefore reverse the cause with directions to enter a final decree in favor of the plaintiffs below adjudging the property involved to have been the homestead of the testator at the time of his death with the consequent result the plaintiffs own the remainder subject to the life interest of the defendant widow.

Reversed.

KANNER, C. J., and ALLEN, J., concur.

      . 2 Fla.Law Review 12-84, 219-242, 346-390.


author: PER CURIAM.

text:
    Ruth Madow SCHERR, Appellant, v. Alfred D. SCHERR, Appellee.
    No. 81.
    District Court of Appeal of Florida. Second District.
    Sept. 27, 1957.
    Erdheim & Armstrong, New York City, and Jack A. Abbott, Miami Beach, for appellant.
    'Cromwell & Remsen, Riviera Beach, for appellee.
   PER CURIAM.

Appellant’s petition for attorney’s fees is denied; and her petition for allowance of costs is denied without prejudice, however, to the filing of a motion- by the appellant in the court below for the assessment of costs. See former Supreme Court Rule 47 and Rule 3.16, Florida Appellate Rules.

Affirmed.

KANNER, C. J., and PLEUS and ALLEN, JJ., concur.


text:
    Tandy Q. PRYOR, Appellant, v. The FIRST NATIONAL BANK OF LEESBURG, as Administrator, et al., Appellee.
    No. 78.
    District Court of Appeal of Florida. Second District.
    Sept. 27, 1957.

      Walter Warren, Leesburg, for appellant.
    Z. D. Giles, Leesburg, for appellee.
   PLEUS, Judge.

This cause is on appeal from a judgment of the Circuit Court of Lake County affirming an order of the County Judge’s Court appointing the appellee, The First National Bank of Leesburg, Administrator cum tes-tamento annexo of the estate of Mary Crabb, deceased.

The last will and testament of Mary Crabb appointed as executor thereof her husband who predeceased her. Her next of kin were a brother and a sister. The latter, executed a waiver in favor of the appointment of the brother who filed a petition for letters of administration, c. t. a. Neither the brother nor the sister were legatees or devisees under the will, but five of the seven beneficiaries named therein countered the petition of the brother of the testatrix with a request that The First National Bank of Leesburg be appointed as such administrator. The said bank is admittedly qualified.

Two questions are presented: (1) Do the provisions of section 732.44, Florida Statutes, 1955, F.S.A., apply? (2) Was citation upon all parties in interest necessary before the Court of the 'County Judge could act?

We have no hesitancy in holding that the provisions of section 732.44 have no application except in cases of intestacy; and therefore, in those instances where the executor named in a will either predeceases the testator or is otherwise unable or disqualified to act when the time comes, we are relegated to the common law rule which gives to those who take under the will priority of appointment or the right to select or nominate for such appointment. This holding is reinforced by reading section 732.44, Florida Statutes, 1955, F.S.A., in conjunction with section 732.43, Florida Statutes, 1955, F.S.A., which requires the petition to state that the decedent died intestate. The common law rule is well stated by the annotation in 1 A.L.R. 1245, 1253 as follows:

“In administration with the will annexed, as in ordinary administration, the rule is that the right should follow the right to the property. Consequently, when there is a will, the law in general looks to the residuary legatees or the principal legatees. Thus, where other things are equal, the beneficiary having or favored by the greater interest should be preferred.”

This rule is supported by a wealth of authorities.

The only case in Florida we have been able to find is the able decision by Circuit Judge Milledge in In re Sawtelle’s Estate, 1955, 8 Fla.Supp. 166, in which he reached the identical conclusion.

As to question two we are directed by counsel to no statutory requirement that a citation be issued nor have we found any such requirement. Therefore, we hold that citation was unnecessary.

The County Judge having followed the wishes of the majority in interest of the beneficiaries and having appointed an admittedly proper and qualified administrator, the Circuit Court was correct, and we therefore affirm the order and judgment from which this appeal is taken.

KANNER, C. J., and ALLEN, J., concur.


author: CARROLL, CHAS., Chief Judge.

text:
    GIDNEY AUTO SALES, and Exchange Insurance Association, Petitioners, v. Vestues CUTCHINS and Florida Industrial Commission, Respondents.
    No. 57-30.
    District Court of Appeal of Florida. Third District.
    Oct. 1, 1957.
    Pallot, Cassel & Marks, Miami, for petitioners.
    Sams and Anderson, Miami, for Vestues Cutchins.
    Rodney Durrance, Tallahassee, for Florida Industrial Commission, respondents.
   CARROLL, CHAS., Chief Judge.

Petitioners invoke certiorari to review an order of the Florida Industrial Commission in a workmen’s compensation matter.

Claimant prevailed before the deputy commissioner, whose order awarding temporary total disability benefits, interest, medical expenses and costs, was affirmed by the commission.

The main problem here, as in the original forum, is whether claimant was employed by the petitioner-partnership, or individually by Louis A. Gidney, one of the partners.

On this question, and on the propriety of the allowance in evidence of Gidney’s deposition used in a prior personal injury case, by claimant, the deputy commissioner’s order recited the following:

“4. The employer and carrier contend that the claimant was not an employee of Gidney Auto Sales, a co-partnership consisting of Louis A. Gidney and his brother, Morris Gidney, but the undersigned does not agree with the contention of the carrier, and finds that the claimant was employed by Gidney Auto Sales through the co-partner, for a period of four or five weeks prior to the above referred to accident; that he was paid his regular weekly salary of $100 per week. It was shown that the claimant performed services not only at the premises of Gidney Auto Sales but also on various properties in which one or more of the partners had a substantial interest, and that it was the regular practice of the partners to use their employees in the maintenance and improvement of these properties. Claimant’s gasoline was paid for by the partnership, as were the costs of the materials used by him, and that .on occasions, a truck or car owned by the partnership was placed at his disposal.
* * * * * *
“At the time of the above accident, the claimant was proceeding from the property upon which he had been instructed to work to the office of the partnership, in order to draw money with which to buy materials necessary to complete his work the following day, as was the customary practice. He was injured during his regular working hours and while he was in the course of and within the scope of his employment, and at the time claimant was injured the employer, Gidney Auto Sales, had in their employ, an excess of three employees, in addition to the claimant.
* * * * * *
“At the time of said hearing, claimant offered into evidence, testimony previously given under oath by Louis A. Gidney during September, 1955, as a witness in claimant’s common law action against the Railroad Company.
“The undersigned Deputy Commissioner reserved ruling on the admissibility of this evidence, and now finds that same is admissible, using for his authority for ruling as such, Falkinberg v. Interstate Businessmen’s Association, 132 Neb. 670, 272 N.W. 924, 927, also line 5 in Wigmore, Evidence, Section 1416(1) p. 194.”

A principal circumstance established here is payment of wages to the claimant by the petitioner. It is recognized that while payment of wages is a factor which may aid in determining an employer, it is not, of itself, conclusive on the question (Berrier v. Associated Indemnity Co., 142 Fla. 351, 196 So. 188, 192), and that direction and control of the employee is a main test in determining the relationship of employee and employer (Patton Seafood Co. v. Glisson, Fla.1949, 38 So.2d 839, 840).

On the question of the claimant’s employment by the partnership, the above ■quoted findings of the deputy commissioner sufficiently cover the point, and the evidence supports his findings.

Those, and other facts in evidence presented a clear showing of employment by the partnership, making it obvious that the deputy commissioner’s order and the commission’s affirmance thereof may not be disturbed. American Airmotive Corp. v. Moore, Fla.1952, 62 So.2d 37; Hamilton v. Cummer Sons Cypress Co., Fla. 1954, 70 So.2d 554; and Barash v. Thrifty Super Market, Fla.App.1957, 97 So.2d 154.

On the other point, concerning use of Gidney’s prior deposition, the deputy commissioner appears to have ruled correctly. Clearly any different or inconsistent prior statements in the deposition were admissible, and the other parts, which were not prior inconsistent statements, if they could be harmful, were not shown to be so.

Therefore, the application for certiorari is denied.

It is so ordered.

HORTON and PEARSON, JJ., concur.


text:
    STATE of Florida, Petitioner, v. L. C. STALEY, Respondent.
    No. 52.
    District Court of Appeal of Florida. Second District.
    Sept. 27, 1957.
    R. B. Huffaker, State Atty., Bartow, Clifton M. Kelly, County Solicitor, Lake-land, and George Glen Darty, Asst. County Solicitor, Lake Wales, for petitioner.
    Oxford & Oxford, Lakeland, for respondent.
   PLEUS, Judge.

The matter is here on petition by the State of Florida for a writ of certiorari to review an order entered June 6, 1957, by the Circuit Court of the Tenth Judicial Circuit, in and for Polk County; said order being one reversing the judgment and sentence of the Criminal Court of Record of Polk County.

The following chronological statement of events presents a sad commentary on the administration of criminal justice:

1. On November 19, 1953, the respondent was informed against on a charge of assault with intent to commit murder.

2. On February 19, 1954, trial was had and verdict rendered finding the defendant guilty of aggravated assault.

3. On March 8, 1954, motion for a new trial was denied, the defendant was adjudged guilty and sentenced to one year in the county jail. Notice of appeal was filed and supersedeas allowed.

4. The appeal was perfected to the Circuit Court and on June 25, 1954, by order filed June 26, 1954, the Circuit Court affirmed the judgment and sentence.

5. On July 12, 1954, a petition for rehearing was filed by respondent.

6. On July 16, 1954, the petition for rehearing was denied.

7. On August 11, 1954, the Circuit Judge vacated and set aside his order of July 16, stating, in part, “It being brought to the court that the petition for rehearing in this cause was had without notice to the appellant, said order denying said petition is hereby set aside and the petition will be heard at a later date.” This order was filed August 12, 1954.

8. On October 4, 1955, the Circuit Judge again denied the petition for rehearing and affirmed the judgment of the Criminal Court of Record.

9. On October 18, 1955, the Circuit Judge vacated the immediate prior order of October 4, 1955, stating in part:

“ * * * it appearing to the court that said order of October 4th, 1955, was entered without notice to the appellant and it is therefore
“Ordered and adjudged that said order entered herein on the 4th day of October, 1955, be and the same is hereby vacated, set aside and held for naught.”

This order was filed October 18, 1955.

10. On May 31, 1957, the Circuit Judge signed an order affirming the judgment and sentence of the Criminal Court of Record. Although signed by the Circuit Judge and found in the case file, this order was not filed for record.

11.On June 6, 1957, the Circuit Judge entered what is termed “order and judgment”, reversing the judgment and sentence of the Criminal Court of Record upon the sole ground that the lower court had erred in not submitting theMefense of self-defense to the jury. The said order further ordered a new trial with direction to the Criminal Court of Record that the question of self-defense be submitted to the jury.

It is to this order of June 6, 1957, filed for record the same day, that the State directs its petition for certiorari.

A consideration of the record including all. the testimony taken at the trial in the Criminal Court of Record convinces us that there was no basis for the defense of self-defense and that in reversing on this ground alone, the Circuit Court failed to follow the essential requirements of the law. We likewise hold that on petition for certiorari by the State the supervisory jurisdiction of this court is sufficient to remedy the erroneous application of correct principles of law to admitted facts. Mathews v. Metropolitan Life Insurance Company, Fla. 1956, 89 So.2d 641; 5 Fla.Jur. section 25, p. 517.

The writ of certiorari is therefore granted and the order of the Circuit Court of June 6, 1957, is hereby quashed and the cause remanded to the Circuit Court with directions to affirm the judgment and sentence of the Criminal Court of Record.

KANNER, C. J., and ALLEN, J., concur.

      . In view of our ultimate decision, we deem it unnecessary to pass upon the state’s contention that this petition for rehearing was not filed within the 15 days permitted by then 31 F.S.A. Supreme Court Rule 45, which rule is conceded to have been applicable on appellate proceedings in the Circuit Court in the want of a contrary rule. See Long v. State, Fla., 96 So.2d 897.

      . The record does not disclose that a mandate went down on either of the af-firmances. If we assume that the Clerk of the Circuit Court performed his duty, we might assume such fact, in which event there would be the serious question of loss of jurisdiction. However, in view of our ultimate decision, it is unnecessary to pass upon this question.