26 Fla. 109 | Fla. | 1890
January 30, 1888, plaintiff in error was convicted of murder in the first degree. A new tridl was granted on his motion, and while the case was still pending another indictment was found against him for the same offense. Subsequently a nolpros was entered as to the first indictment. Thereupon plaintiff in error filed a plea of autrefois acquit to the second indictment, alleging that he had been put in jeopardy of his life by the trial under the first. The State Attorney demurred to this plea, and the Court sustained the demurrer. A trial was then had on the plea of not guilty, a verdict of guilty with recommendation to mercy rendered by the jury, and motions in arrest
Before delivering his written charge the judge addressed the jury orally in these words: “Before proceeding to deliver my charge to the jury, by request of defendant’s counsel, I desired to call attention to an unfortunate and very improper circumstance that occurred the other day in the presence of the jury, when one Mrs. Harvey was leaving the witness stand, and made a declaration that should not have been made, and for which she was subject to punishment for contempt if her remark had been heard by the Court, but she being a woman, and counsel declining to ask any ruling thereon, she was not punished. I instruct you to banish from your mind that circumstance, ft has nothing whatever to do with this case. As to the arguments made by counsel, you are not here to try the case by the arguments of counsel; it is the privilege as well as the duty of counsel to argue to the best advantage in the behalf of their clients; it is the study of a lifetime that they learn how to distort, change, color and discolor facts in order that they may use them to the' advantage of their clients. They are not here as you and Í are here, but as partisans. The Court and jury come here disabused of every feeling of prejudice, every feeling of injustice, and to perform the solemn duty to ascertain the facts and law, and nothing more.”
The question presented by the assignment of errors are, whether the plea of mitrefois acquit was rightly overruled, whether it was proper to address the jury orally in the language just quoted, and whether that language was not in itself error. The question on the instruction in regard to immateriality of proof as to the time of the commission of the offence, is regarded as abandoned, there being no reference to in the brief of counsel.
Nor does the entry of a nol pros in the case make any difference. That is not a bar to another indictment for the same offence. Commonwealth vs. Wheeler, 2 Mass., 172; Lindsay vs. Commonwealth, 2 Va. Cas., 345; Worthen vs. Commonwealth, 5 Rand., 669; Walton vs. State, 3 Sneed, 687. A new trial having been granted, the case stood as if
In regard to the alleged error of 'the Court in delivering a portion of the charge to the jury orally, it does not appear from the record that any exception was taken to this at the time. Under the practice of this Court, in construing the statutes in relation to oral and written charges, such error, being as to a merely formal requirement, is considered as waived if not excepted to before the retirement of the jury. Even if alleged as error on a motion for a new trial, it comes too late. The statute which authorizes a party to embody in a motion for new trial mistakes of the Court not before excepted to, gives that privilege as to substantial matters charged, but not as to formal matters connected with the delivery of the charge. And even where the judge has given oral instructibns, and afterwards before the jury retired gave written instructions, saying to the jury they were substantially the oral instructions he had givgn, it has been held that this is a compliance with the statute requiring charges to be wholly in writing in case to which the requirement applies. Southern Ex. Co. vs. VanMeter, 17 Fla., 783; Potsdamer vs. State, Ibid, 895; Baker vs. Chatfield, 23 Fla., 540. The rule as to waiver of the error applies alike to civil and criminal cases. Southern Ex. Co. vs. VanMeter, supra.
Our conclusion being that the objection to the charge on the ground that it was delivered orally, was waived under the circumstances of the case, the next question to be considered is, whether the charge in its substance was erroneous. It is given above in full, and two objections are made to it. xst, that the instruction to disregard the improper circumstancé* of a declaration made by the witness Mrs.
A more important question is involved in the second objection, relating to the argument of counsel. If the judge had contented himself with saying to the jury, as he did, that they were not to try the case by the arguments of counsel, and that it is the privilege as well as duty of counsel to argue to the best advantage of their clients, there would be nothiug to complain of. ITe would then have been understood as only warning them that they should not be controlled in a decision of the facts by the argument of counsel, as against their own judgment. Judge, jury and counsel have their separate functions and duties, and in their proper places are each deemed essential under our system to the due administration of justice between litigants. Counsel, as sworn officers of the Court, are to be respected
The disparagement of counsel in the language we have