JOSEPH DAMICO v. THE STATE OF FLORIDA, 153 Fla. 850

ADAMS, J.: Appellant was convicted of breaking and entering with intent to commit a felony, to wit: grand larceny. The first question we consider is whether there was error in denying an application for a commission to take the testimony of a nonresident witness to support a plea of alibi. The information was filed September 22, 1942. December 5th, following, a motion to quash was filed. December 8th, appellant was arraigned. The case was set for trial on January 12th and on January 5th the application for commission was presented and denied. The statute authorized the, commission up to the time he is arraigned.

Section 199 (A), Criminal Procedure Act;

Section 916.06, Fla. Stat. 1941. So it appears that the application was made too late, and, no doubt, the trial judge was convinced that to grant the commission one week before the case was to be tried would necessarily result in a continuance and he was justified in the exercise of his discretion in denying the application. It is also claimed that error was committed by allowing an attorney to testify to admissions of appellant.

It appears that the attorney represented the owners of the property stolen from the building which appellant broke and entered and while endeavoring to locate and reclaim the stolen property he conversed with appellant and aided in having appellant released on bond in order to secure a return of the property. The record shows no relationship of attorney and client hence the point is not well taken. People v. Corbin, 118 Calif. App. Rep. 392, 5 Pac. (2nd) 460; 70 C.J. page 403, et seq.

The next question is whether the secretary-treasurer and principal stockholder in the victimized company, could, by her consent and confederation, exonerate the culprit. The place entered was a jewelry store belonging to a corporation. There wére two stockholders. The president held a small amount of stock and the secretary-treasurer held the remainder. Both were active in the business although the president was the real manager.

Friction between them arose and the secretary-treasurer was convinced that she was not being dealt with fairly whereupon at a time when a large stock of valuable jewels were consigned to company and in its custody she conspired with appellant to rob the store and hold the jewels for a reward. The reward was to be divided between appellant and the secretary-treasurer. In that way she expected to recoup a part of her investment in the venture. Pursuant to such agreement she left the safe unlocked and enabled the appellant to commit the crime. To support his contention appellant has cited Albritton v.

State, 81 Fla. 684, 88 So. 623 and several other cases of like import. Such authorities have no application to the facts of this case because while the secretary-treasurer was financially interested in the store the title to the property was in the company and also a large portion of the stolen property belonged to consignors. She had no right, either moral or legal, to consent to the crime. 32 Am. Jur. 911 Wharton’s Criminal Law, 12th Ed., Vol. 2,

Section 1177, et seq. It is also insisted that the court erred in failing to charge on the lesser offense charged, to wit: breaking and entering with intent to commit a misdemeanor. This contention is without foundation because there was no evidence to support or require such a charge, and none was requested. All other questions have been duly considered and found without merit. The judgment is affirmed. , BUFORD, C. J., TERRELL, BROWN, THOMAS and SE-BRING, JJ., concur. CHAPMAN, J., concurs specially.