Lake v. State , 100 Fla. 373 ( 1930 )

BUFORD, J., Dissenting: After careful consideration of matters and things appearing in the record which were pointed out and brought specifically to the attention of the Court by arguments and briefs on rehearing, I am convinced that the demurrer to the indictment should have been sustained. That when the demurrer was overruled and motion filed asking that the State be required to furnish a bill of particulars, it was an abuse of discretion to overrule and deny the motion which should have then been granted.

I think that the insufficiencies in the indictment were such that they might have been waived by the defendant in not filing a motion to quash or a demurrer, or, failing to file either, then in not filing a motion for bill of particulars. When, however, the vagueness and uncertainties of the allegations of the indictment were objected to by demurrer and when the demurrer had been overruled, such deficiencies were sought to be supplemented by requiring a bill of particulars such defects were not waived, and, in the denial of the motion error prejudicial to the accused occurred. The defendant was entitled to be advised upon what acts the State would rely to constitute proof of guilt of the crime sought to be alleged.

In the case of Rast v. State, 79 Fla. 772, 84 So. R. 683, Mr. Justice ELLIS, speaking for the Court, says:

"In the case of Thomas v. State, 74 Fla. 200, 76 So. R. 780, we said that the right of a defendant to demand a bill of particulars and of the court to direct one independent of express statutory authority may be considered sidered as settled in this State. See also Thalheim v. State, 38 Fla. 169, 20 So. R. 938; Brass v. State, 45 Fla. 1, 34 So. R. 307; Mathis v. State, 45 Fla. 46, 34 So. R. 287; Ellis v. State, 74 Fla. 215, 76 So. R. 698. It is unnecessary to repeat here the court's reasoning by which it arrived at that conclusion. Mr. Justice LIDDON, in speaking for the Court in the Thalheim case, quoted from the case of State v. Rowe, 43 Vt. 265, in which the court said: 'That the rule was made with the view of satisfying the provision of the 10th Article of the Bill of Rights of our State Constitution, which gives the accused in all prosecutions for criminal offenses a right "to demand the cause and nature of his accusation." ' Any other view of the law, this court said, would be in conflict with that section of the Bill of Rights of our State Constitution. See Sec. 11, Bill of Rights."

In the case of Thomas v. State, 74 Fla. 200, 76 So. R. 780, this Court say:

"In a criminal prosecution where a bill of particulars is seasonably applied for and reasonably demanded, the matter of requiring the State Attorney to supply it rests largely within the Court's discretion; but that discretion is subject to review, and where the denial of the application may result in defeating justice, it will be treated as reversible error."

It is also my view that while the evidence contained in this record is sufficient to show that Forrest Lake disregarded many statutes of the State of Florida in regard to banking, and violated the provisions thereof in such manner as to render himself amenable to prosecution for such violations, this record fails to show that he was guilty of that particular act which is denounced by the statute and which is attempted to be charged in this indictment in that it fails to show that he aided or abetted the other officer of the bank named in the indictment in the making of a false entry in the books of the bank with the intent, by such entry, either to defraud the bank or to deceive the Comptroller or his agents.

It is my view that it is of supreme importance to observe the settled rules and requirements of the law in accomplishing a conviction and that the State jealously guard the rights of its citizens to the end that when charged with a crime a citizen should have a fair and impartial trial, being fully advised by the pleadings of the act which the State relies upon as constituting the criminal conduct and that the evidence should establish the commission by the accused of the act charged by competent and substantial evidence.

For the reasons stated, I think the judgment in this case should be reversed and the cause remanded.

ELLIS, J., concurs.