dissenting. — The first error found by the majority is developed under the second assignment, which questions the refusal of the Court below to grant a change of venue. The motion for a change of venue Was'based upon the alleged prejudice of the Presiding Judge and the ill-repute of the defendants in Okaloosa, County. This motion was made under the provisions of Section 1471, of the General Statutes of 1906, which provides that the ■ opposite party may deny the truth of any allegation of the motion except the allegation that the Trial Judge is prejudiced, when such allegation is made.
, The State did traverse the truth of the allegation that the defendants were so odious in Okaloosa County as to prevent them from securing an impartial Jury. The Court took testimony upon the issue thus made, and decided it against the defendants. The testimony amply sustained this decision, and. its correctness was further attested by the procurement of a Jury of twelve good *153and' lawful' men accepted by both parties. Roberts v. State, 72 Fla. 132, 72 South. Rep. 649.
The Statute under consideration concludes with these words: “Such application sháll fully and distinctly set forth the facts upon which the same is founded.” In other words, it is not sufficient merely to say that the defendant is odious, or that the Presiding Judge is prejudiced. ■ These statements would be mere conclusions. The facts must be stated, so that the Court may intelligently pass upon the motion. Otherwise, a defendant charged' with a serious offense, or even a hard-pressed defendant in a civil suit, might trifle with the Court and the law and bandy the case around from Court to Court in the hope that time and circumstance might mitigate the inclemency' of his plight. "
Defendants’ counsel recognied this principle of law, and xindertook to state the facts upon which the allegation of the Judge’s prejudice was based. These facts are stated as follows: “That the Judge of the said Court; without other or further reason than that the people of the County of Okaloosa demanded 'speedy justice’ and no delay of the law, acting at the behest of such' public sentiment, has called this special term of Court to try the said defendants, when according to the Statutes of the State of Florida, the regular fall term of said Court would commence on the last Monday in August of this year.”
Section 1471 of the General Statutes of 1906, supra, requires that the facts showing the Judge’s prejudice must be set forth. If the sworn application for change of venue states facts which, if true, would require a change of venue, these facts cannot be disputed. But if the facts stated are not sufficient, admitting their truth, to require a change of venue the Trial Judge may ignore *154them. Therefore, the facts set forth in the above quotation are admitted, and the question is, do these admitted facts show the Presiding Judge to- be disqualified by reason of prejudice against the defendants?
Section 1813 of the General Statutes of 1906, provides as follows: “The Judges of the Circuit Courts are authorized to order and hold extra and special terms of said Courts whenever in their judgment the public welfare and the cause of justice require the same.” Did the Judge in the case at bar act from any other motive than that here setforth by the Legislature? Comparing the language of the application for a change of venue with this last quoted Statute, it seems to me that the phrases “the public welfare” and “no delays of the law” are closely akin, as also often may be “the cause of justice” and “speedy justice.”
A revolting qrime had been committed in Okaloosa County, and the people very naturally demanded ^speedy justice.” They wanted a Grand Jury empaneled, in the first place, while all the, evidence was available; and at the time the special term of Court was called they very naturally wanted' the case- tried before one or both of the defendants had further opportunity to escape, as one of them had done at the former trial. That the Presiding Judge knew of these public sentiments, and was influenced by them in calling a special term of the Circuit Court, is not equivalent to prejudice against the defendants personally.
In the case of Purvis v. Frink, 55 Fla. 715, 46 South. Rep. 171, this Court said the Statute here under consideration “must be construed to mean that prejudice which will lisqualify a Judge must be a prejudice against a party to the cause, and not a prejudice based upon the possible incidental opinions and views.” “Prejudice,” *155in the sense in which the word is employed here, means such a state of mind of the Presiding Judge that it may be said he has prejudiced the case and come to the conclusion that the defendant is guilty. The mere fact that he has been influenced by outraged' public sentiment in the calling of a term of Court to try parties accused of horrible crime does not by any, manner of means show that he has prejudiced the case and reached the conclusion that the defendants were guilty of that crime.
The majority opinion holds that when a Circuit Judge convenes his Court in special session for the purpose of trying a defendant accused of a revolting crime, he thereby manifests such prejudice as disqualifies him and sends the case to another County for trial. For the reasons already stated', I cannot concur in this holding. As I have pointed out, the Legislature has provided for such special terms, and, so far as I am able to ascertain, the convening of them has never before been held to prove the prejudice of the Presiding Judge.
The further holding that the application for change of venue on the ground that the Presiding Judge is prejudiced against the applicant need state nothing further than the conclusion that he is prejudiced, considered' in conjunction with Section 3998 of the General Statutes of 1906, which provides for additional changes of venue on the same ground, will, in my opinion, so ensnare the feet of justice that swift legislative action will be necessary to save the Courts from disrespect and ridicule. In the case of Purvis v. Frink, supra, the application for change of venue stated that the Judge was prejudiced and undertook to state facts showing that he was' prejudiced; but this Court held that the showing of fact was not sufficient to support the general allegation. In the body of the opinion in that case these words appear: *156“It-will be observed that the application for change of venne nowhere alleges any ■ facts tending to show any prejudice on the part of the Circuit Judge ........” Ahd in a brief concurring opinion Mr. Justice TAYLOR pointedly states the matter thus: “The application for change- of venue states in general terms the legal conclusion- that the Judge is prejudiced, but when the facts are stated- that comprise this alleged prejudice, they do not-even tend to show any prejudice on the Judge’s part-' *• -if ■>.”
-Men aceused-'of crime ought not to be illegally tried and convicted to save them from a'mob, nor should any man be -tried by a prejudiced Judge; but a judicial holding that a special term of Court cannot be called without disqualifying the Judge who calls it-from trying defendants accused of heinous crimes, and that the defendant may transport his case from Court to Court upon his bald,. unsupported and unexplained statement that the several Presiding Judges before whom he comes are prejudiced against him, can but add to the public impatience of the law’s delays, and cause fresh • outbreaks of mob violence.
The several remarks in reference to the Pardoning Board and the Supreme Court injected into the case by the Assistant State Attorney were indecorous and irrelevant, to be sure; but I cannot hold as fatal error the refusal of the Presiding Judge to strike them. Every normal man in the State knows that there is a Supreme Court and a Pardoning Board, and that practically all capital cases are reviewed' by both of these tribunals; and a reminder of their existence could not have materially influenced the Jury in the performance of their sworn duty.
*157As to the testimony of John Helversion concerning old man Saundérs and his dog, it is a close question whether it might merely show a tendency of the defendants to commit violence against old people having money, which would be improper evidence, or whether it might have gone to show a general plan and purpose to commit several such crimes; this latter especially in view óf overwhelming testimony that Will Blackwell had tried to enlist the help of several other men, at different times, in violently taking money from old people, including the Davis couple for whose murder he was on trial. As an abstract proposition of law, evidence going to show the tendency of the defendant to commit crimes similar to the one for which he is on trial is improper. Whar. Crim. Ev. (10th ed.) p. 247, and cases there cited. But there are some notable exceptions to this rule, and one of those exceptions was elucidated by this Court in the case of Wallace v. State, 41 Fla. 547, 26 South. Rep. 713. In this case Mr. Justice CAETEE, after stating the rule proceeds as follows: “All the authorities concur in the view that evidence of defendant’s acts prior or subsequent to the alleged offense which logically tend to prove the criminal intent, or guilty knowledge, where they are material, is admissible; and likewise where the crime in question is one of a system of criminal acts occurring so near together in point of time and so nearly similar in means as to lead to the logical inference that they are all mutually dependent and committed in pursuance of the same deliberate criminal purpose and by means planned beforehand, evidence of such other acts' is admissible, even though those acts amount to another criminal offense.” Presley v. State, 63 Fla. 27 South. Rep. 605.
But even admitting that this particular testimony was *158irrelevant, all the sting was taken out of the error when, as stated in the majority opinion, it developed that Will Blackwell probably wanted the dog killed so that he could go to see a young woman living in the Saunders house.
The majority opinion seems to have been largely influenced by the general attitude of the judge and State Attorney during the trial of the case, and a number of instances are pointed out as amounting to unfairness. The assistant State Attorney, who had active charge of the case, was evidently convinced beyond doubt of the guilt of the defendants, and he prosecuted them with zeal and vigor. In the heat of the contest he said and did many things that he ought not to have said and done,, and that he probably would not have said and done in calmer moments, some of these things being pointed out in the majority opinion. It is also true that the presiding judge was strikingly lenient with the acting State Attorney in his rulings, and that at many points where he had discretion he exercised it in behalf of the prosecution. But I do not believe it can be said that he abused his discretion to such a point that the defendants were thereby injured.
The general attitude of the judge and State Attorney may not support an assignment of error, nor is there any attempt to assign it as error. And, as I understand it, the province of this court is to review cases only upon assignments of error.
It is also true that the testimony was conflicting — * as is to be expected in cases of this kind; but the law constitutes the jury the judges of conflicting testimony, and a jury has exercised that function in this case. The verdict of guilty is supported by evidence which the *159jury had the right to consider to the exclusion of all other.
Unless wholesale perjury has been committed on behalf of the State, Will Blackwell’s guilt appears to be established beyond a reasonable doubt. A jury who saw the witnesses and heard them testify decided that Robert Blackwell also was guilty, and. there was testimony legally sufficient to support this decision, which has also been approved by the presiding judge in denying the motion for new trial, one ground of which is that the verdict is not supported by the evidence.
For these reasons I cannot concur in the majority opinion.
Whitfield, J., concurs. •