The plaintiffs in error, Jesse McIntosh and Cleve Pryor, were separateely informed against by the County Solicitor of Hillsborough County, Florida, but by consent of counsel were jointly tried by the same jury in the Criminal Court of Record of said County. Jesse McIntosh was convicted under count one of the information, which charged him with the possession of bolita tickets which were evidence of an interest in a lottery not yet played.
Cleve Pryor was convicted by the jury under count one of the information charging him with the possession of bolita tickets which were evidence of an interst in a lottery not yet played. The lower court sentenced each defendant to pay a fine of $750.00 or to be confined for a period of six months in the county jail of said county. From these judgments of conviction writs of error were sued out and appeals perfected to this Court. *Page 865
The record shows that during the progress of the trial in the lower court the following proceeding occurred, viz.:
"MR. McARTHUR: Comes now the defendants in this cause and moves the Court to issue a subpoena duces tecum directed to the stenographers — I believe you have two of them. What are their names please?
"MR. SPICOLA: Miss Gravitt and Mrs. Altman.
"MR. McARTHUR: Miss Alma Gravitt and Mrs. Altman, directing them to appear before the court here in Tampa, with their notes taken at the time of the preliminary hearing in this case in Judge Savareze's court, and their stenographic notes, if any, as to any testimony that may have been taken by them, or either of them, in the office of the County Solicitor, from this witness.
"THE COURT: It is denied.
"MR. SPICOLA: Are you through with this witness?
"MR. McARTHUR: No, sir, I ask the Court then to allow me to apply to the clerk for a subpoena duces tecum for these witnesses to appear —
"THE COURT: Mr. McArthur, I am not going to issue the process of this court for you just on a fishing expedition. There is absolutely no showing before this court so far that their testimony will in any way contradict the testimony of this witness. Furthermore, I am not going to take my time or the time of this jury to go over there and do that. Anyhow, you or Mr. Fields have had plenty of time to do that without stopping proceedings here to do it now. You can have an exception to my ruling and if I am wrong on it I may be reversed by the Supreme Court, but I am not going to permit this now.
"MR. McARTHUR: I ask that the jury be withdrawn.
"THE COURT: Absolutely denied.
"MR. McARTHUR: I move the Court at this time to declare *Page 866 a mistrial for the reasons stated in reference to an appeal and the possible reversal by the higher court.
"THE COURT: Absolutely denied.
"To which ruling of the Court the defendants by their counsel duly excepted."
It is contended by counsel for plaintiffs in error that the proceedings, supra, constitute reversible error. We agree to this contention. See State ex rel. Brown v. Dewell, 123 Fla. 785, 167 So. 687.
For the error pointed out the judgments appealed from are each hereby reversed and a new trial awarded.
WHITFIELD, P. J., and BROWN, J., concur.
TERRELL, C. J., concurs in opinion and judgment.
Justices BUFORD and THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.