
    Jackie Lee JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 67-92, 67-140.
    District Court of Appeal of Florida. Second District.
    Feb. 2, 1968.
    Rehearing Denied Feb. 27, 1968.
    Robert E. Jagger, Public Defender, and Joseph F. McDermott, Asst. Public Defender, Clearwater, for appellant.
    Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.
   ALLEN, Judge.

The appellant, Johnson, has appealed from two judgments and convictions of “uttering a check with a forged endorsement.”

Two informations were filed against appellant. One of the informations pertained to certain criminal acts allegedly committed by appellant in a St. Petersburg Publix Market on the 7th of September, 1966. The second information contained the same charges except that the alleged acts had taken place one day later on September 8, 1966.

The two cases were consolidated for trial and also for purposes of this appeal.

Two women employees from the Publix Market acted as witnesses for the state and identified the appellant as being the person for whom they had cashed the checks.

The lower court directed verdicts of acquittal as to Count One of each information on the ground that no evidence had been adduced to show knowledge that the signature of the maker was forged. The cases were submitted to the jury on Count Two of the informations and appellant was found guilty of both charges.

Appellant has raised two points on this appeal. The first is whether or not the court erred in commenting on evidence in its instructions. The second is whether the court erred in limiting defendant’s number of peremptory challenges.

After carefully examining the record on appeal and researching the problem areas in some depth, we conclude that both questions raised by appellant must be answered in the negative. The judgments and sentences appealed from must, therefore, be affirmed.

At the conclusion of the testimony, the trial judge proceeded with his instructions to the jury. During those instructions he defined “uttering and publishing” and “forged endorsement” after which he stated:

“Now, you note that notwithstanding that the elements may have been proved that I have defined for you; that is to say, the uttering and the publishing of a check; and notwithstanding the forged endorsement, it is essential that the state establish knowledge on the part of this defendant that he knew the endorsement was forged, and further that he did utter and publish with the intent to defraud.
“Now, gentlemen, knowledge and intent are states of mind, and they are rarely, if ever, susceptible of direct or positive proof. You just cannot open a person’s mind and see what he knows or intends. But that which a person knows and that which he intends may oftentimes be inferred from his acts and his conduct in the face of all the facts and circumstances with which he is faced and which he knows with which he is faced. And it is for you to determine from all the facts and circumstances of the case which you believe to be true; that is to say, from circumstantial evidence, whether or not the State has proved to you that this defendant, assuming the check, assuming the forged endorsement, this defendant knew that it was forged; and further whether or not he had the intent to defraud. Now, the intent to defraud which is required in this case is the conscious purpose to commit a fraud upon another person. The other person in this case is alleged to be Publix Market, Inc.”

We do not view the quoted parts of the judge’s charge as commenting on the evidence.

In Marlow v. State, 1905, 49 Fla. 7, 38 So. 653, the trial court charged the jury, in effect, that if the defendant, with malice toward the deceased, induced an assault upon himself with premeditated design to shoot and kill the decedent if the decedent did assault him, then the defendant could not avail himself of the plea of self defense. Our Supreme Court, in the Mar-low case, supra, held that the instruction above referred to did not invade the province of the jury and affirmed the judgment of the lower court.

And then in Griggs v. State, 1929, 96 Fla. 749, 119 So. 513, the Court held that where the judge had qualified his charge with “ * * * if you believe from the evidence * * * ”, certain recitations which the judge made thereafter did not amount to an assumption in the instruction that certain material and controverted facts were established.

We view those portions of the judge’s charge which we have quoted above to fall squarely within the holding of the Griggs case, supra, pointing out once again that they do not amount to a commentation on the evidence.

We now turn our attention to a consideration of the second question, i. e., whether the court erred in limiting defendant’s number of peremptory challenges. In reference to this question, we hold, that since the court below allowed eight peremptory challenges at the trial, the defendant received the six peremptory challenges to which he was entitled under the statute, plus two additional challenges, which we deem to he within the trial court’s discretion to grant or deny.

The statute to which we refer is Fla. Stats., § 913.08, F.S.A. It provides:

“913.08 Number of peremptory challenges
The state and the defendant shall each be allowed the following number of peremptory challenges:
“(1) Ten, if the offense charged is punishable by death or imprisonment for life;
“(2) Six, if the offense charged is a felony not punishable by death or imprisonment for life;
“(3) Three, if the offense charged is a misdemeanor.
“(4) If two or more defendants are jointly tried each defendant shall be allowed the number of peremptory challenges specified above and in such case the state shall be allowed as many challenges as are allowed to all of the defendants.”

In Meade v. State, Fla.1956, 85 So.2d 613, 59 A.L.R.2d 835, our Supreme Court held that it was error for the court to order two prosecutions for murder consolidated for trial where the defendant had objected to the consolidation on various grounds. After holding that reversible error had been committed in consolidating the cases, the court, in its opinion, stated:

“The statute dealing with the subject of peremptory challenges contains a provision that the defendant shall be allowed ten of such challenges if the offense charged is punishable by death or life imprisonment and that if two or more defendants are jointly tried, each of them shall be allowed ten peremptory challenges. Sec. 913.08, Florida Statutes 1953, and F.S.A. But it does not follow that if a defendant is faced with charges of murdering two persons, the number of his peremptory challenges should be restricted to ten simply because there is but one defendant. When the fundamental purpose of the challenges is considered, the contrary is plain.”

It is worth noting that in the statute referred to above, the legislature saw fit to provide specifically that in the event two or more defendants are tried together each defendant shall be allowed a certain number of peremptory challenges. If the legislature had intended for a defendant with two or more charges against him to have a specified number of peremptory challenges on each charge, as claimed by appellant, it would have so provided in the statute.

The case of Blackwelder v. State, Fla.App.1958, 100 So.2d 834, was a prosecution under two informations, which were consolidated for trial. One information charged the defendant with the unlawful sale of intoxicating liquors in a dry county, and the other information charged him with unlawful possession of intoxicating liquors with intent to sell same in a dry county. Judge Sturgis, speaking for the First District Court of Appeal, held that where the basis for the informations arose out of a single incident, the evidence was secured simultaneously, and' the witnesses were identical, the defendant was not entitled, upon a consolidation of the cases, to accumulate the number of peremptory challenges that would have been allowable had the cases been tried separately.

The court further held that trial judges have discretionary power to order consolidation of criminal cases involving two or more informations relating to similar or connected offenses.

In its opinion, the court discusses the Meade case, supra, saying:

“Defendant cites Meade v. State, Fla., 85 So.2d 613, 59 A.L.R.2d 835, as authority for his alleged right to six peremptory challenges, that being the aggregate number that would have been available to him on separate trials of the charges made by the two informations. We do not agree. In the Meade case separate indictments charged him with murder in the first degree. They related to two distinct homicides, in one of which the victim was bludgeoned to death with a shotgun, and in the other was shot to death with a pistol. Defendant Meade contemplated introducing no testimony but his own in defense of one case, which would have entitled him to the opening and closing argument before the jury, while in the other he contemplated using additional witnesses, and he strenuously and repeatedly objected to consolidation, before and after the proceedings commenced. The supreme court held that it was prejudicial to consolidate the charges because it seriously disabled' the presentation of his defense. We are aware of the dicta in that case to the effect that even if consolidation were proper under the circumstances, the gravity of the charges was such that defendant should have been permitted twice the number of challenges specified by the act. However, there is no sound parallel between the facts in that case and those in the case on review.”

The court concluded its opinion by saying:

“ * * * It is not clear under our statute whether the number of allowable challenges varies according to whether the trial is one involving a single indictment or information or involving two or more indictments or informations that are properly consolidated for trial. We hold that the number allowable as a matter of right is the same in either case. The trial judge may, however, allow such additional peremptory challenges in a consolidated case as in his discretion seems just.”

Only two Florida cases, those above quoted, appear in the briefs of appellant and appellee, and we have been unable to find any other cases on point from this state.

In reviewing cases from other jurisdictions, however, we note that the Supreme Court of New Mexico, in the case of State v. Compton, 57 N.M. 227, 257 P.2d 915, 923 (1953), had this to say:

“In order to facilitate the trial of the case the state moved for consolidation of the two cases against the defendant and the defendant joined in this motion. Thereafter the defendant requested the allowance of five peremptory challenges for each of the cases so consolidated. This request was denied and the court asked the defendant if he would like a severance. The severance was declined by the defendant and he was limited by the court to five peremptory challenges upon the entire consolidation. The defendant assigns the action of the court in this regard as prejudicial error.
ft # c
“The general rule is stated in 50 C.J.S. § 281(4), p. 1077 under Juries, to wit:
“ ‘The fact that an indictment contains several counts does not entitle accused to any additional peremptory challenges, even though the different counts charge separate and distinct offenses which may be joined in the same indictment. This is also true where several indictments charging similar offenses, which might have been charged in separate counts of the same indictment, are consolidated. * * * t

The Supreme Court of North Carolina, in State v. Alridge, 206 N.C. 850, 175 S.E. 191, 192 (1934), held that a defendant, on the consolidation for trial of separate indictments against him, was not entitled to four peremptory challenges on each indictment. The court, in its opinion, said:

“* * * C.S. § 4633, Michie’s Code 1931, provides: ‘And in all joint or several trials for crimes and misdemeanors, other than capital, every person on trial shall have the right of challenging peremptorily, and without showing cause, four jurors and no more.’ The theory of the law is that, when two or more indictments for the same offense are consolidated, they are to be treated as separate counts of the same bill. * * * [Citations omitted] Consequently, if there is but one bill containing several counts, it would seem manifest that a defendant is not entitled to four peremptory challenges on separate counts in a bill, but that he should be allowed four challenges at the trial on the consolidated bill.”

In the case of Kharas v. United States, 192 F. 503 (8th Cir. 1911), where separate indictments against a defendant for violation of the same statute were consolidated for trial . . . the result was to create a single case on a number of counts.

The Court, in its opinion at page 506, expressed the following:

“ * * * we must necessarily hold that the result of the statutory consolidation under consideration was the creation of a single case containing several accusations of offenses constituting misdemeanors only against the defendant; that thereby the four original indictments were transformed into one indictment or one case and brought within the express provision of section 819, R.S. (U.S.Comp.St. 1901, p. 629), which enacts that ‘in all other cases’ (that is, other than treason, capital offenses, or other felonies), ‘civil and criminal, each party shall be entitled to three peremptory challenges.’ ”

We hold that under the factual situation herein that the lower court should be affirmed.

Affirmed.

LILES, C. J., concurs.

PIERCE, J., dissents with opinion.

PIERCE, Judge

(dissenting).

I regret that I must part company with my brethren in this case. In my opinion the trial Court erred in restricting defendant Johnson to eight peremptory challenges, notwithstanding the two cases were tried together. I feel six challenges should have been allowed in each case.

Two separate informations were filed against Johnson, one No. 16,500 and the other No. 16,501, both under the forgery statutes, F.S. Ch. 831 F.S.A. It is alleged that both checks were drawn upon the UNION TRUST COMPANY; both were for $65.00 and made payable to one Eugene Mitchell; both were signed “Cleveland Johnson” under the printed words “Welch Real Estate”; both bore the signed endorsement of “Eugene Mitchell”; and both were cashed at the Publix Super Market Store No. 64, in St. Petersburg. Each information was in two counts, the first charging forgery of the signature “Cleveland Johnson” on the face of the checks and the second charging forgery of the signature “Eugene Mitchell” on the back of the checks.

But while the informations alleged the foregoing similarities between the two checks, there were also vital dissimilarities. One check was alleged to have been passed on September 7, 1966, and the other check on September 8, 1966. And while they were both allegedly passed at the same supermarket it is clearly indicated they were passed through different clerks or employees of the supermarket. So while it appeared from the informations that the two checks were similar they were not identical. The passing or uttering of each check was a different transaction and constituted a separate offense provable by different witnesses.

Johnson was arraigned separately upon each information, entered separate pleas of not guilty, separate verdicts were returned as to each information, separate adjudications of guilt were made by the Court, separate sentences were imposed, and separate notices of appeal were filed.

During interrogation of the jury upon their voir dire the Public Defender representing Johnson had exercised six peremptory challenges, and then excused peremptorily a seventh juror, one Mr. Anderson. The prosecutor objected, contending that defendant was only entitled to six such challenges. After discussion the Judge, considering he had discretion in the matter, ruled that defendant could have his seventh challenge but no more, observing: “This is the end, that’s right. Mr. Anderson is your last peremptory”. Thereafter, after further discussion, the Court decided to extend the number to eight challenges. The defense challenged an eighth juror, and thereafter sought to challenge a ninth, a Mr. Ebeling. The Court sustained the State’s objection. The following colloquy, taken from the record, conveys the picture:

“MR. McDERMOTT (Asst. Public Defender) : At this time the defendant requests to excuse Mr. Ebeling peremptorily.
MR. MENSH (Asst. State Attorney): I object, your Honor.
THE COURT: We have got to draw the line somewhere here.
MR. McDERMOTT: Well, I think, though, that the jury selection is by a panel and not by individual persons. You may have one person on there that you would accept under particular circumstances and that you wouldn’t accept the whole panel. I assumed at the outset of the trial that I had twelve.
THE COURT: Yes, I agree.
MR. McDERMOTT: Now, I feel I have been prejudiced by 'the liinithtion, and I therefore request that Mr. Ebeling be excused.
MR. MENSH: Your Honor, may I just point out something?
THE COURT: Yes.
MR. MENSH: Based upon Mr. McDer-mott’s assumption, I would point out there is a statute governing—
THE COURT: Yes.
MR. MENSH: (Continuing) * * * peremptory challenges.
THE COURT: Yes, 913.08.
MR. MENSH: Yes, sir.
THE COURT: The statute is silent, however; but there is a case which says that in consolidation of cases, when the cases are consolidated for trial and involve similar or the same offenses, that it is discretionary with the Court. I don’t want to go into twelve challenges. There are no reasons given.
MR. McDERMOTT: I don’t think I need assign a reason for a peremptory challenge, your Honor.
THE COURT: No, I appreciate that, but the Court doesn’t have to assign a reason to exercise its discretion on limiting to eight either. We’re talking about the defendant, we’re talking about people, not cases. The State of Florida is on the one hand and the defendant, Jackie Lee Johnson, is on the other. Now, I assume — he has excused eight jurors.
MR. McDERMOTT: Yes, sir.
THE COURT: Prospective jurors. If there were only one case to be tried today, we would be going to trial now, unless the state were to challenge a couple. Now, we have six people here, all of whom say they would be fair and impartial jurors, and this defendant, Jackie Lee Johnson, has had an opportunity to excuse eight jurors. The Court has stricken four for cause, and the state has stricken none. Now, I think we are about ready to go, gentlemen. Denied. I have got to draw the line somewhere so let’s go. If you have cause, we will discuss it.
MR. McDERMOTT: No, sir, the challenge exercised was a peremptory challenge.
THE COURT: Well, we have ruled before this was the end. I will limit it to eight. Let’s go.
MR. McDERMOTT: Well, under those circumstances I can’t of course, announce to the Court that I accept the jury because I don’t.
THE COURT: All right.
MR. MENSH: I will ask the jury be sworn.
THE COURT: Yes, sir. Do you accept this panel?
MR. MENSH: Yes, sir, I have accepted this panel.
THE COURT: All right, thank you.”
Sec. 913.08 F.S. [F.S.A.] provides—
“913.08 Number of peremptory challenges
The state and the defendant shall each be allowed the following number of peremptory challenges:
;fc }{c ij; ;jc
(2) Six, if the offense charged is a felony not punishable by death or imprisonment for life;
(4) If two or more defendants are jointly tried each defendant shall be allowed the number of peremptory challenges specified above and in such case the state shall be allowed as many challenges as are allowed to all of the defendants.”

I think this case is ruled by Meade v. State, Fla.1956, 85 So.2d 613, 59 A.L.R.2d 835. The Supreme Court there held that where a defendant is tried before the same jury upon two separate offenses he is entitled to his full complement of peremptory challenges in each case, the same as if each indictment were tried separately. The trial Court in Meade limited the defendant, over his objection, to ten peremptory challenges, which is the number prescribed by F.S. Sec. 913.08 F.S.A. for a capital case. The Supreme Court reversed, holding that Meade was entitled to ten challenges in each case, or twenty altogether. We quote inter alia from the Meade opinion:

“The statute dealing with the subject of peremptory challenges contains a provision that the defendant shall be allowed ten of such challenges if the offense charged is punishable by death or life imprisonment and that if two or more defendants are jointly tried, each of them shall be allowed ten peremptory challenges. Sec. 913.08, Florida Statutes 1953, and F.S.A. But it does not follow that if a defendant is faced with charges of murdering two persons, the number of his peremptory challenges should be restricted to ten simply because there is but one defendant. When the fundamental purpose of the challenges is considered, the contrary is plain.
* * * * * *
All the references in the statute, Sec. 913.08, are to an offense, in the singular, and it is in the concluding paragraph that provision is made that when defendants are jointly tried each shall have the privilege of exercising the number of challenges specified.
In view of the purpose of peremptory challenges, it seems to us that even if consolidation of two cases of such gravity should be approved, there would be as much reason for allowing the defendant twice the number of specified challenges as to allow each of two defendants ten challenges upon their trial for murdering a single person. In either situation the number of challenges, twenty, would be the same as the total number assured by the statute if separate trials should be conducted.”

The fourth headnote in Meade is as follows :

“Even if it had not been error for trial court to consolidate two prosecutions for murder against single defendant, it was error to restrict defendant to ten peremptory challenges, and he should have been allowed 20 peremptory challenges, the number to which he would have been entitled, under statute, had he been granted separate trials. F.S.A. §§ 912.01, 913.08, 913.10, 913.10(2), 924.32(2).”

In Blackwelder v. State, Fla.App.1958, 100 So.2d 834, the 1st District Court declined to follow Meade when applied to the facts in the Blackwelder case. In Blackwelder the defendant was accused in two informations, each a misdemeanor, one alleging the “unlawful sale of intoxicating liquors in a dry county” and the other the “unlawful possession of intoxicating liquors with intent to sell same in a dry county”. Jurisdiction to try the two offenses was in the County Judge’s Court of Alachua County, and that Court, over the defendant’s objection, ordered the cases consolidated for trial and refused to allow the defendant more than three peremptory challenges, the number prescribed by F.S. Sec. 913.08 F.S.A. in a misdemeanor case. Blackwelder appealed his conviction to the Alachua County Circuit Court, which affirmed, and he thereupon applied to the 1st District Court for writ of certiorari, which was denied and the lower Courts upheld.

The opinion in Blackzvelder refers to portions of the Meade opinion as “dicta”. I do not so construe the Meade opinion, but if it was dicta, it was “good dicta”. However, the Blackwelder opinion drew a distinction between the facts in that case and the facts in Meade, pointing out that in the Meade case “two distinct homicides” were involved, while in Blackwelder the two misdemeanor charges arose “out of a single incident”. This is the true rationale of the Blackwelder opinion, as is evidenced by the following language therein:

“Hence it is seen that the basis for the two informations charging misdemeanors arose out of a single incident, the evidence was secured simultaneously, and the witnesses were identical. In fact, the entire circumstances surrounding the separate charges were identical as to time, place, and character.
* ífí ‡ * * *
The practical effect of the consolidation in the case on review is identical with what would have resulted if there had been a single information with two counts, one charging the sale and the other possession for sale, and a verdict and judgment of conviction rendered on both counts.”

As I read the Meade opinion, the Supreme Court laid down a rule of procedural law applicable to all cases, felony and misdemeanor, and to all consolidated cases, whether by consent or otherwise. But while Blackwelder different from the holding in Meade in some particulars, the case sub judice is actually in harmony with Black- welder in the light of the above quoted language.

The rule is perhaps best expressed in 50 C.J.S. Juries §281 (4) p. 1077:

“The fact that an indictment contains several counts does not entitle accused to any additional peremptory challenges, even though the different counts charge separate and distinct offenses which may be joined in the same indictment. This is also true where several indictments charging similar offenses, which might have been charged in separate counts of the same indictment, are consolidated. The rule is otherwise where several indictments against the same accused are not consolidated but tried together before the same jury. (Emphasis supplied).

I would reverse. 
      
      . The evidence at the trial bore this out, the passing of the check in information No. 16,500 being proved by employee — witness Lenore Weishaar and in information No. 16,501 by employee — witness Judith Ann Brisk. Their names are listed as witnesses on the respective informations applicable to each. Also, when, the witness Weishaar was brought in to testify the prosecutor advised the Court “this witness is testifying in Case No. 16,-500”; and as to the witness Brisk “this witness will be testifying as to Case No. 16,501”.
     
      
      . It is conceded that the offenses here charged would come within this category.
     
      
      . It is obvious that the word “consolidated” as here used by the C.J.S. text writer was not used in the same sense as in the instant case.
     