42 So. 2d 768 | Fla. | 1949
Lead Opinion
The County Solicitor of Polk County, Florida, filed in the Criminal Court of Record against the appellant Baker twelve separate informations charging him with the abominable offense of the crime against nature. He was placed upon trial before three separate juries and convicted on three of the twelve informations. He has not been placed on trial on the remaining nine informations. The trial court adjudged him guilty of the offense and sentenced him to serve a period of twenty years in the State Prison at hard labor. On the other two convictions he was sentenced for a period of twenty years but these two judgments were by the trial court ordered to run concurrently with the first sentence.
A motion for a new trial on various grounds was presented to the court by appellant's counsel in each of the judgments entered against him but each was denied and a supersedeas bond fixed in the sum of $1,000.00 on one of the three judgments entered below. *769
Pursuant to the provisions of Section
The appellant Baker was interrogated in open court by his counsel in support of the insolvency affidavit. It is not disputed that he owned real estate situated in Polk County valued at from $6,000.00 to $7,500.00 about the time the twelve informations were filed against him each charging a felony. It is not disputed that he sold the real estate and used the proceeds thereof, in part, in defending himself against the criminal prosecutions. In the order of the trial court holding the appellant solvent and able to pay the costs of the three prosecutions and convictions entered against him prior to appeal, the first recitation was viz.: (1) "The defendant. Hubert D. Baker, appears to be without funds at this time." (2) Prior to his arrest he owned valuable real estate; (3) he hired seven lawyers to defend him; (4) he paid money to his attorneys and bond premiums but the remainder was not accounted for.
The order further recites: "The court is forced to the conclusion that it was not the purpose of the insolvency statute to enable a defendant who is in comfortable financial circumstances as was this defendant, to employ attorneys without any respect to their number and spend all of his money in this connection, reserving none of his funds with which to pay the necessary costs incident to an appeal should one be necessary. If this is the interpretation to be placed on the statute, the door is opened wide for every defendant, without regard to his financial status, to use all of his funds employing attorneys and then place on the County the burden of all costs as an incident thereof. It specifically appears to the Court in this particular matter, the defendant had adequate funds with which to employ competent counsel to properly represent him and likewise to pay the expenses of any appeal. The Court therefore finds and the defendant is adjudged not to be insolvent within the purview of Section
The question here is whether or not the evidence offered below was sufficient to bring the appellant within the provisions of Section
"* * * I will ask you now, do you own any property in your own name any place, anywhere? A. No sir. If I do I don't know about it.
"Q. If you do, you don't know about it? A. I certainly don't know about it.
"Q. Is it a fact that you did dispose of your property and employed counsel to represent you in the various cases? A. That's right.
"Q. And as far as you know, you have deeded all of your property, both real and personal, to your attorneys? A. Yes sir. *770
"Q. Oxford Oxford, Martin Martin? A. Yes sir.
"Q. Do you know at the present time of any money — any funds with which to pay the Court costs in this case? A. No sir, I don't. And if pennies would do it, I don't. I got a couple of dollars but I ain't got that with me.
"Q. And that is all the property that you have — that you possess? A. Yes sir."
On a lengthy cross-examination conducted by counsel for the prosecution, the picture made by appellant's direct testimony was not materially changed on the question of his solvency.
It appears by the cross-examination that some of the appellant's relatives were financially able to pay the costs, but this contention was placed at rest by our holding in Swilley v. State,
A similar question was presented in Rast v. State,
It is our conclusion, in light of the cited authorities, that the order or orders entered below denying an adjudication of insolvency of appellant were erroneous, and accordingly each of said orders is reversed with directions to enter orders of insolvency and that all the costs of appeal in each of the three suits to the Supreme Court of Florida be paid by the County of Polk.
Reversed with directions.
ADAMS, C.J., concurs.
SEBRING and HOBSON, JJ., concur specially.
Concurrence Opinion
The majority opinion expresses clearly the former holdings of this court on the issue raised. There is no evidence that the appellant divested himself of his property and funds in bad faith and for the purpose of bringing himself within the provisions of the insolvency statute. Therefore, I concur in the opinion and judgment.
HOBSON, J., concurs.