[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 568 Relators were indicted in Hillsborough County for kidnaping and conspiring to kidnap Eugene F. Poulnot. A change of venue was granted, the cause was transferred to Polk County where it was tried in the Criminal Court of Record and the defendants convicted. On writ of error to this Court, the latter judgment was reversed. Brown, et al., v. State, 128 Fla. 762, 175 So. 515. This opinion was clarified in a subsequent opinion filed January 5, 1938.
An indictment for murder in the second degree grew out of the same transaction as the indictment for kidnaping and conspiring to kidnap. A trial on this indictment resulted in a directed verdict for the defendants. On consultation with counsel representing the State and the defendants, the trial court set a day certain to retry the case of Brown, et al., v. State, supra. Immediately thereafter the State, through its Assistant County Solicitor, Honorable J. Rex Farrior, filed a motion and affidavit suggesting the disqualification of the trial judge. On being brought to his attention, the trial judge held the said affidavit sufficient in form and disqualified himself.
Defendants thereafter instituted this proceeding by filing their petition in this Court praying for an alternative writ of mandamus directed to the respondent trial judge, commanding him to assume jurisdiction in and try said defendants or show cause why he refused to do so. Respondent filed his return in which he denied the material allegations *Page 569 of the alternative writ, but asserted the right of the State to suggest his disqualification, that he considered the affidavit correct in form, and being so, he had no alternative but to disqualify himself, but that he stood ready and willing to take charge of and try said cause if the Court directed.
Under the state of the pleadings, the question with which we are confronted is whether or not under Section 2674, Revised General Statutes of 1920, Section 4341, Compiled General Laws of 1927, the State is authorized to file an affidavit suggesting the disqualification of a trial judge in a criminal case on the ground of prejudice.
The statute, in effect, provides that whenever "a party" to any action or proceeeding, Civil or Criminal, shall make and file an affidavit stating that he fears he will not receive a fair trial on account of the prejudice of the judge, stating "the facts and the reasons" for such belief, such judge shall proceed no further therein, but another judge shall be designated in the manner provided by law to try the cause.
In our opinion, this question above stated must be answered in the affirmative. The statute by its terms is available to any party in a civil and criminal proceeding. The State is a necessary party to a criminal proceeding and this Court has held that the statute is available to it in criminal prosecutions. State, ex rel. Mickle, v. Rowe, 100 Fla. 1382, 131 So. 331; Dickinson v. Parks, 104 Fla. 577, 140 So. 459. In Corpus Juris, Volume 33, page 1001, and R.C.L., Volume 15, page 526, the question is discussed and cases cited supporting this rule. See also the following cases: State, ex rel. Douglas, v. Superior Court for King County, 121 Wn. 611, 209 P. 1097; State v. Brown, 8 Okla. Cr. 40, 126 P. 245; State, ex rel. McAllister, v. State, 278 Mo. 570, 214 S.W. 85.
The second question with which we are confronted may be stated as follows: Is any Assistant County Solicitor *Page 570 who has been regularly sworn and designated as such, authorized to make the affidavit of disqualification provided in Section 4341, Compiled General Laws of 1927?
Section 5975, Revised General Statutes of 1920, Section 8249, Compiled General Laws of 1927, provides for appointment by the County Solicitor of Assistant County Solicitors, defines their status as such when appointed, and specifies the duties that they are authorized to perform. They may perform, under the statute, the same duties and exercise the same power, as the County Solicitor, filing of informations excepted.
The record discloses that J. Rex Farrior was designated by the Governor to assist in the prosecution of defendants, that he was appointed by the County Solicitor as Assistant County Solicitor of Polk County, that the affidavit of disqualification was filed by him as Assistant County Solicitor on behalf of the State, that the State made no objection to Mr. Farrior as Assistant County Solicitor and both the County Solicitor and the Assistant County Solicitor of Polk County certified that the affidavit of disqualification was filed in good faith.
The duties of County Solicitors are the same as those of State Attorneys, Section 8241, Compiled General Laws of 1927, and both represent the State in criminal prosecutions. Assistant County Solicitors can perform any duty that County Solicitors can perform except the signing and filing of informations. The filing of the affidavit of disqualification is not jurisdictional and is such an act as the Assistant County Solicitor is competent to perform.
The only other question necessary for us to consider is whether or not the defendants as relators have stated such a case as entitled them by mandamus to require the trial judge to assume jurisdiction and try the cause for which they stand charged. *Page 571
The affidavit and motion suggesting the disqualification of Respondent is grounded on prejudice. Summarized, it alleges categorically:
(1) At the former trial when the State produced as a witness one W.D. Bush, the trial judge remarked to the affiant, "I understand that W.D. Bush's testimony will be a high point in this case and I am going to bear down on him," that after Bush was examined in chief, court was adjourned by Respondent at about three P.M. until the following morning to give the court reporter time to transcribe his (Bush's) testimony in order that defense counsel might go over it before cross-examination, which was done the following day in an abusive and unrestricted manner over the objection of counsel for the State.
(2) At the conclusion of the testimony the trial judge gave all counsel in the case a copy of the charges he proposed to give, to some of which charges the State objected, and then there followed an animated controversy back and forth among counsel and the trial judge as to what part of the charges would be given or what the scope of the argument as to them would be. Some months later when the trial judge was requested to set one of the companion cases for trial, he flatly refused to do so until Hillsborough County paid the board bills incurred for the bailiffs in the two former trials. This unnecessary delay was given wide publicity in the press unfavorable to the trial judge and this aroused his enmity to defendants.
(3) In October, 1937, a trial of defendants was begun on a charge of second degree murder growing out of the same transaction as Brown, et al., v. State, supra, that immediately after the jury was sworn, the trial judge announced that he would rule as inadmissible certain evidence affecting the charge of conspiracy to kidnap. Considerable argument of counsel was permitted as to the admission of said testimony *Page 572 and the judge's ruling thereon was followed by much adverse criticism by the press.
(4) In June and December, 1937, a group of citizens from Hillsborough County went to Tallahassee and petitioned the Governor to remove the trial judge and relieve him from further participating in the trial of said cause on account of bias and prejudice against the State and to assign another judge to try said causes. Both of said petitions were given wide publicity in the press, were commented upon unfavorably to the trial judge, and this aroused his resentment to the State's cause.
(5) During the progress of the trial of said cause lasting many days, the trial judge held secret conferences with counsel for the defendants. These conferences became so prevalent and frequent that counsel for the State protested, but they continued to the end of the trial notwithstanding such protests.
Other charges of prejudice on the part of the trial judge based on general declarations and political intimacy between him and counsel for the defendants are made, but they will not be detailed here. The affidavit is concluded with elaborate reasons for failure to file it in ten days before the beginning of the next term of the court which are not essential to consider. Affidavits of two reputable citizens supporting the affidavit of disqualification are attached as the law requires.
Mandamus is a discretionary writ and will not be granted except on a showing of clear legal right to the remedy sought. Relators contend that the affidavit of disqualification is in every respect insufficient. They assert no other reason for the writ. It is not contended that they are as a matter of right entitled to have their case tried by respondent; that they will suffer inconvenience, undue hardship, *Page 573 or be deprived of material rights if it is not tried by him. Such a showing does not warrant the relief prayed for.
The test of the sufficiency of the affidavit is whether or not its content shows that the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant's mind and the basis for such feeling. In Dickenson v. Parks, supra, we held that the trial judge might examine the affidavit to determine its legal sufficiency and if found to be so, he had no alternative but to retire from the case. He cannot pass on the truth of the allegations of fact. If they are not frivolous or fanciful, they are sufficient to support a motion to disqualify on the ground of prejudice.
One charged with crime is guaranteed a fair and impartial trial. He is not entitled to more nor is he entitled to be tried by any particular judge or jury. A fair trial means an orderly trial before an impartial jury and judge whose neutrality is indifferent to every factor in the trial but that of administering justice. Courts are mere agencies provided for this purpose, the judge and the bar being the vehicle through which it is accomplished.
Then there is a marked difference between a legal disqualification on the ground of interest, as exemplified in State v. Call, 41 Fla. 442, 26 So. 1014, and a mental disqualification for prejudice, as involved in this case. They are predicated on different grounds, arise from different causes, and are controlled by different statutes.
In view of all that is alleged to have taken place, we are driven to the conclusion that the affidavit of disqualification was sufficient. The trial judge thought so and disqualified himself. Under such circumstances, mandamus is not available to require him to retry the cause.
The ruling of Respondent on the sufficiency of the affidavit *Page 574 was therefore correct and his return to the alternative writ was ample. It is accordingly quashed and the proceeding dismissed.
It is so ordered.
WHITFIELD, BROWN and CHAPMAN, J.J., concur.
ELLIS, C.J., and BUFORD, J., dissent.