The judgment of conviction herein was affirmed on an evenly divided Court. A rehearing was granted and reargument had.
In his address to the jury the State Attorney said:
"Harold didn't live down here; he didn't come down here until they had something for him to do. Did you know that? I want you to think about that. This fellow lived in Kentucky. His daddy is not here today either, you see? Being tried for a serious criminal offense, but he ain't here and he was notified in ample time, and that man right yonder would stop it if he hadn't been notified, and his mother was notified and ain't either one of them here.
"JUDGE BELL: I suppose you are apprised that his father is dead?
"MR. STUBBS: Well, his mother. That is closer to him. I can conceive of his daddy going back on him, but never his mother going back on him.
"JUDGE BELL: Object to the State attorney arguing absence of his mother and father as it is not a matter concerned with this case.
"MR. STUBBS: Matter of legitimate comment. They were notified that the law contemplates the extension of this invitation for that purpose.
"THE COURT: Well, with the correction, proceed.
"MR. STUBBS: I have got two old boys out to the house. I am not especially sold on one of them either. I might run out on him, but never as long as the sun shines would his mother run out on him. She ain't here. It can't mean but one thing in the world. They talk about this fellow's wonderful character; that they haven't brought anybody here to show to the contrary. You know as well as I do *Page 467 you can't put the defendant's character in evidence unless he puts it in himself. There hasn't been a fellow put on the stand to prove this fellow had a good character. Don't let them kid you. And under the law I couldn't put on a single man about his character until he opened it up, and he never opened it."
Errors are assigned through the motion for new trial to other remarks by the State attorney in his address to the jury, but it is not necessary to set them out here.
The Court is of the opinion that regardless of the guilt or innocence of the defendant, such remarks of the State attorney to the jury as those quoted above are so prejudicial to the defendant as to entitle him to a new trial.
In Washington v. State, 86 Fla. 533, 542, 98 So. 605, 609, it is said:
"The prosecuting attorney occupies a semi-judicial position. He is a sworn officer of the Government with no greater duty imposed on him than to preserve intact all the great sanctions and traditions of the law. It matters not how guilty a defendant in his opinion may be, it is his duty under oath to see that no conviction takes place except in strict conformity to law. His primary considerations should be to develop the facts and the evidence for the guidance of the court and jury, and not to consider himself merely as attorney of record for the State, struggling for a verdict.
"In argument to the jury counsel for all parties are restricted to the evidence and reasonable deductions therefrom, but within this rule they have a very wide discretion. As was said in Mitchum v. State, 11 Ga. 615, text 631, `His illustrations may be as various as are the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination. To his freedom of speech, *Page 468 however, there are some limitations.' Any attempt to pervert or misstate the evidence or to influence the jury by the statement of facts or conditions not supported by the evidence should be rebuked by the trial court and if by misconduct a verdict was influenced a new trial should be granted. Clinton v. State,53 Fla. 98, 43 South. Rep. 312; Bradham v. State, 41 Fla. 541,26 South. Rep. 730; 3 Wharton's Crim. Proc. p. 1496."
It was not error for the Court to admit evidence showing the existence of insurance on the houses, even though the insurance might be collected thereon by Paul Duke, in whose name the property stood at the time of the fire. The evidence shows that the defendant, Harold Duke, was the nephew of Cleo Duke, and that Paul Duke was the son of Cleo Duke; that there were twelve houses on the premises, and that only two of them were insured and these were the two that were burned. That Paul Duke tried to get a greater amount of insurance than he secured, and got this only after telling the insurance agent that he and his wife were going to improve the houses and move out there. The testimony also showed that the defendant admitted to the witness, Carl Wilson, that he had burned the houses in order that his uncle might collect the insurance thereon.
In Sawyer v. State, 100 Fla. 1603, 132 So. 188, the Court said:
"It is contended that the court erred in admitting evidence that Charles W. Sawyer, who was the father of defendant, Enslow Sawyer, had the house and its contents fully insured; that the defendant was not charged with the statutory offense of burning property with the intent to defraud the insurer. Although the defendant was charged with arson — the malicious burning of the dwelling of another — and an intent to defraud the insurer is not an element of that offense, we are inclined to the view that where *Page 469 evidence is introduced tending to show the corpus delicti, that is, that the burning was not accidental but incendiary, the State may resort to circumstantial evidence to show that the defendant committed the act, and that he did so with criminal intent. Where the defendant himself holds a policy of insurance on the property, this would certainly be admissible as showing a possible motive for the crime. Where the policy is not held by the defendant, but is held by the defendant's father, and where, as here, there is evidence of statements by the accused tending to show an intention on his part to burn the house or cause it to be burned in order that his father might collect the insurance, we think there was no error in permitting the State to prove that the father had the house and contents insured and the amount of the insurance. Rogers v. State, 26 Tex. A. 404, 9 S.W.R. 762; State v. Rogoway, 45 Oregon 601, 78 Pac. R. 987, 81 Pac. R. 234, 2 Ann. Cases, 431."
The evidence was sufficient to prima facie prove the existence of a conspiracy and it was therefore competent for the Court to admit the statements and acts of each of the conspirators.
The first count of the information alleged that Paul Duke was the owner of the property burned, the second count alleged that Cleo Duke was the owner, and the third count alleged that Harold Duke was the owner. There was some doubt in the mind of the State attorney as to who the jury would find owned this property, and it was proper for him to allege ownership in different persons as he did in the information.
The defendant assigned as error the Court's denial of defendant's motion to require the State to elect the count of the information upon which it would proceed.
In 31 C.J., Indictments and Informations, Sec. 361, pp. 790-791, it is said: *Page 470
"The granting or refusal of a motion to compel the prosecution to elect as to which of several counts it will proceed is within the sound discretion of the trial court, and defendant is not, as a matter of right, entitled to require, at the commencement of the trial, that the State elect between the counts. The rule has been applied where the several counts set forth the same charge in different ways to meet the evidence, or different means of commission of the same offense, or the same act as different offenses, or different degrees of the same offense, or even distinct misdemeanors, or distinct felonies. The ruling on a motion to require an election will not be reviewed, except in a clear case of abuse of such discretion. Hence the refusal is not the subject of exceptions, nor a ground for a writ of error, or for a motion for new trial. If from the inspection of the entire record it is apparent that no prejudice resulted to accused, the refusal of an election which might properly have been granted is no ground for reversal."
See also Eggart v. State, 40 Fla. 527, 25 So. 144; Branch v. State, 76 Fla. 558, 80 So. 482; Presley v. State, 61 Fla. 46,54 So. 361; Gantling v. State, 40 Fla. 237, 23 So. 857; Murray v. State, 25 Fla. 528, 6 So. 498.
The defendant has not shown wherein he was prejudiced by the Court's refusal to require the State attorney to designate the count upon which he was relying for a conviction. Since the matter is one within the sound discretion of the Court, and since no abuse of this discretion has been shown, there was no error in the Court's refusal to require the State to designate the count on which it was relying for a conviction.
Other matters presented as errors harmful to the accused will perhaps not occur on another trial, and they need not be discussed here.
*Page 471Reversed for a new trial.
TERRELL, C.J., and WHITFIELD, BROWN and CHAPMAN, J.J., concur.
BUFORD, J., adheres to the original opinion filed in this cause.
THOMAS, J., not participating.