72 Fla. 228 | Fla. | 1916
—The plaintiff in error, hereinafter referred to as the defendant, on an indictment charging him with murder in the first degree, was convicted of and sentenced for manslaughter in the Circuit Court of Marion County, the case being tried there on change of venue from Sumter County, and by writ of error seeks a review of such judgment here.
At the trial during the selection of the jury a tales-man on his voire dire answered to a question propounded to him touching his qualification as a juror, as follows: “That he would render an impartial verdict after he had heard the evidence, the argument of attorneys and the law as given by the Judge, and would be governed by the evidence, the argument of attorneys, and charge of the court in the making up and rendering of his verdict;” whereupon the judge did say and state to the venireman in the presence of other veniremen that “the lawyers amount to nothing,” to which remark of the judge exception was taken and it is assigned as error. This remark of the judge was evidently called out by the answer of the venireman that his verdict in the case would be governed by the “argument of the attorneys,” and was an infelicitous, awkward and inept way of saying to the-venireman that he should not be too much or unduly gov
The next assignment of error urged, here is an alleged improper separation of the jury after they had heard the evidence in the case. We find no basis of fact in the record for this assignment of error save and except an allegation of the fact of such separation contained in one of the grounds of the motion for new trial as set forth in the bill of exceptions. It is the settled rule that when there is no other evidence in the record of the truth of an asserted fact than its assertion in a motion for a new trial, it can not be considered by an appellate court. Broward v. State, 9 Fla. 422; State v. Madoil, 12 Fla. 151; Gibson v. State, 16 Fla. 291; McNealy v. State, 17 Fla. 198; Livingston v. L’Engle, 22 Fla. 427; Parrish v. Pensacola & A. R. Co., 28 Fla. 251, 9 South. Rep. 696; Pinson v. State, 28 Fla. 735, 9 South. Rep. 706; Weightnovel v. State, 46 Fla. 1, 35 South. Rep. 856; Finlayson v. State, 46 Fla. 81, 35 South. Rep. 203; Barnhill v. State, 56 Fla. 16, 48 South. Rep. 251; Thomas v. Price, 56 Fla. 694, 48 South. Rep. 17; Marsh v. Bennett, 49 Fla. 186, 38 South. Rep. 237; Kirkland v. State, 70 Fla. 584, 70 South. Rep. 592.
The next assignment of error urged here is the alleged denial of the defendant’s motion for new trial on the ground of the insufficiency of the evidence to support the verdict. This assignment cannot be considered for the reason that the transcript of the record shows that the
This disposes also of the question argued at great length in the briefs of the plaintiff in error challenging the constitutionality of Section 4007 of the General Statutes. It may not be amiss for us to remark that we have gone over the evidence as exhibited in the bill of exceptions with care, and that the case made thereby may call for the careful consideration of the Board of Pardons.
Finding no reversible error, the judgment of the Circuit Court in said cause is hereby affirmed at the cost of Sumter County, the plaintiff in error having been adjudged to be insolvent.
Taylor, C. J., and Cockrell, Whitfield and Ellis, JJ., concur.
Shackleford, Justice, absent.