*1 853 Sо, record, as I knowledge) with this other woman. see the there is the for the alienation of party responsible affection. in this record any any is there evidence of cooling .Nowhere ardor, of the lover’s any lack of affection or of the demon- stration thereof of the toward until after spouse plaintiff began other woman in the life play part husband’s That doings. the defendant was well wisher to or any knowledge unholy of this alliance between his son and this is other woman not intimated the plaintiff any other witness.
The evidence convincing is that Bаrnard Kilgore was not by his son’s pleased marriage plaintiff, but it also shows that he never the activating force which alienated the affection the son from the Her plaintiff. testimony shows that her husband was affectionate and considerate of her beginning until after the of his association with that other he, woman of whom he became so enamored that within ten wife, days after his leaving indulged a bigamous marriage. The judgment should be reversed: J.,
BROWN, dissenting in part: I evi- majority concur with the there was sufficient dence introduced to the trial require court submit this case therе jury holding were no errors .the rulings judge during trial progress but in of all cir- charge jury, trial or view I cumstances revealed the evidence think verdict of and that a remittitur of one half jury was excessive should be required. amount of the verdict LANE, WILLIAMS, FREDDIE LEE DAVIS and C. JAMES JAMES STATE OF FLORIDA. (2nd) Term, 19 So. 366 June 28, En Banc
Rehearing denied October *2 Williams, G. for appellants.
Bradford General, J. Watson, Attorney Tom Wynn, John G. Assist- General, Attorney Parker, ant Attorney, O. G. State for appellee.
BUFORD, C. J.:
This cause is before us on motion of the State to dismiss the appeal ground that same was interposed and the transcript record discloses nothing which does or could constitue a legal ground for review of the judgment of the Circuit Court this regard.
The record is before us showing that the three defend- ants were indicted for the crime of rape alleged to have been by committed them a Florida; on woman in Gadsden that a term of special the circuit court of the said County was called and held for the disposing of the charge accused; against that before indictment the circuit judge conferred with defendants to ascertain whether or not them, retained, they, or either of or position retain, counsel advised being each of them they an attorney had not retained did not contemplate doing so, he then advised each of them that the court would appoint of the bar of the attorney an Second Judicial Circuit to repre- sent each of them and that in so he doing would appoint such attornеy might as each select. Two of the defendants stated leave would the selection up The judge. acquainted other announced that with Attorney Clyde of Tallahassee wanted him. So the Gregory judge ap- Jr., pointed Ashmore, another Mr. R. W. able Bar, defendants, the Tallahassee one of other represent and Mr. Gregory, lawyer many years Paul able successful experience of criminal in this practice law defendant, section of represent other appointments he advised the defendants and approved his action. He аrranged attorneys these to meet and confer in private with defendants whenever such conferences were desired either or all. a called,
Thereafter special grand term court was jury was empaneled the indictment was returned trial, day set for all such in the рresence attorneys. of such The accused and parent parents the minor defend- ants were due given notice thereof. When the- and time *3 arrived for to trial it was made to trial appear the court that the accused could not and procure fair impаrtial trial County Gadsden and that there existed great probability if it bring was to accused attempted into court at that and time there place would blood-shed. Thereupon the presented State its motion that the cause be removed for trial to some convenient circut court where the defendants have a fair could and trial. impartial Attorneys for each announced, of defendants the court open they, as attorneys defendants, respective approved the motion and be granted. consented that it Thereupon оrder was made duly removing and entered and transferring the cause trial proceedings and other to the Circuit Court of Florida, Alachua at Gainesville.
Thereafter, executive orders were made the Governor Walker, May H. of assigning Judge Hon. Circuit the Second. Florida, Parker, Judicial Circuit of and Hon Orion C. States Florida, the of Attorney of Second Judicial Circuit to proceed Judicial Eighth to Circuit and Gainesville and as judge act function circuit and states attorney there and County said said Court in all respectively further in connection the trial disposition with and cause. said order, a special term of
Pursuant such the Circuit County duly in and for Alachua was called and held, Court A in court. being present attorneys for the defendants for trial set thereupon counsel was and date to said agreeable respective and their the defеndants after due notice to defend- minor parent parents and to the attorneys, When for trial. date, cause came on ants, of said trial defendants, each in person called for trial the the cause was for ar- ready and announced present each of the de- charging under the indictment raignment the crime of rape. fendants ar- separately each of the defendants was Thereupon, the offense guilty plea and each entered raigned each carefully questioned the trial court Thereupon charged. freely or not his was plea defendant to ascertain whether the defendants voluntarily entered and whether or not of such plea the consequence each realized what respectively the defendants be. The answers of probably would freely his plea that hе entered were sufficient show of his fully rights advised voluntarily follow such probably plea. realized the results which would of each of the trial court accepted plea Thereupon defendants, to take jury discharged proceeded testimony concerning surrounding the сircumstances to be law- determining penalty crime for the Statutes, 921.13 Florida 1941. fully inflicted as to each. See and other witnesses on behalf of The victim of the assault oath in the of each presence examined under the State were *4 given with full opportunity defendant and’ his examination, and as to facts pertinent testified cross of the defendants. We find no by or from either objection have received however. Then each evidence to been illegal (as record) voluntarily by shown became a defendant carefully after being behаlf warned in his own witness oath, frankly, fully and under as to testified rights, of his crime to he had entered which commission and his that he two co-defendants held testified Each plea. on a high- victim Gadsden woman up at which time defendants were armed night-time, way rifle, they a both which at the pointed a рistol with (the weapons) life; threatened her them with woman that force and her will and threats against with of death if submit, she did her, not each of the defendants assaulted (two consummating her, sexual intercourse with of them twice, once each in an automobile and once eаch on the ground a short away road; distance from the one of the de- fendants admitted one act of sexual intercourse. How- ever, his co-defendants and the all woman testified that he twice.) also committed the act testified,
Each effect, defendant after hаd sexually each assaulted the woman the first time they dis- cussed among themselves the advisability of killing woman whom they were then threats and force detaining, prevent her from reporting and prosecuting them; after sexually assaulted her the last time one (she twice) of them shot her shоt was and that they then dead; believed she was they covered her leaves, trash and limbs and fled the scene in an automobile.
The testimony woman, shows that after hours, a few consciousness, recovered made way her to other people and reported the occurrence. Within a few hours the perpe- trators of the crime apprehended and arrested more than a hundred from miles the scene of the crime.
On the evidence each plea defendant was adjudged of the crime of guilty rape was sentenced to death by electrocution. sentence,
From the judgment and notice of appeal was filed. Thereupon, appellee filed the aforesaid motion to brought complete dismiss certified transcript of the proceedings, record of the trial and judgment to here, be filed duly filed. After due notice to counsel of record the said motion appeal, on said came on for hearing and dis- on 1944. position at
Attorney appellants the hearing on motion to dis- fihi,g statement of miss filed here a his contentions as to why the judgment. Court should review He has not pointed out error committed in or single alleged about the indictment, trial, as disclosed judgment by the record. 59.33, Statutes, 1941, *5 Fla. provides:
Section 858 of error shall have power quash proceedings
“Courts lie, in error in all cases in error does not or where are ...” ... merely delay. taken faith or against good Jr., 876, Williams, al., Nuccio, Fla.
In ex rel. 97 et v. State 523, 122 So. we held:
“Where it frivolous аppears to the court that is appeal merit, court to appellate without exists power Laws, 1927, dismiss the of proceedings Comp. view Gen. 6437; Sec. to take ‘appellate jurisdiction’ being power cognizance of and review in an inferior court proceedings are irrespective brought up, the manner in which whether of error.” writ And also said:
“The processes the court cannot be used to defeat administration idle to contend that justice. It is powers destroyed by of an court are appellate practically meticulous observance of technical rules of when procedure motion sufficient evidence is exhibited proper merit, error are frivolous Court that the destroyed and used for to the end that be justice may rights .away-in meaningless and substantial frittered a sad commentаry upon discussions. It would be loquacious in this ad- justice the so-called scientific administration age, preservation public private vanced when the orderly processes are secured rights pretended law, easily sacrificed to that substance could be so shadоw pretense.” Ruff, al., et v. holding Guaranty
To like effect was the
197,
283,
Co.,
al., 99 Fla.
126
and in
Title & Trust
et
So.
85,
625;
Webster,
Crump
Snively-
43 Fla.
29 So.
v.
Holland v.
368,
Co.,
291;
126
99 Fla.
So.
Randall
Giddings Const.
v.
559,
21,
Twitchell,
124
in Langfield
Fla.
So.
followed
v.
98
564,
23,
565,
23;
124
98 Fla.
124
Cozine,
Fla.
So.
So.
And
98
1347,
851;
Fla.
128 So.
Walker
Hardesty,
v.
99
v.
erson
Co.,
153,
696;
Fla.
Chemical
83
90 So.
Broward
Agr.
American
v. Peacоck,
Bowden,
751,
489;
Barrs
Fla.
Fla.
So.
Meister,
Fla.
118; DuBose v.
Our Rule 4 contemplates case and valid shown and such upon good legal grounds being Act, rule is authorized under Sec. 316 Criminal Procedure (same F.S.A.), Sec. 924.40 power Fla. Stats. Such has bеen often exercised us in criminal cases.
The machinery of courts of never al- justice should merely lowed be used for the or to orderly obstruct processes justice. Neither should courts deprive anyone of the right be heard when he makes it to that he has a apрear justiciable issue to be determined. Such has not been made to in this case and we have appear to find in sought vain the record basis for such an issue. carefully Each member of this Court has perused entire find reflected transcript nothing record we would, could, therein which a valid ground constitue meticulously Due appeal. process carefully has been observed The through stage proceeding. on the face of merit.
appears wholly the record to be We have anything been unable to find the record which justiciable would constitue the basis for a issue to be deter- and, therefore, mined on review of the cause the motion to granted. dismiss should be Let mandate of dismissal now issue.
So ordered.
TERRELL, BROWN, CHAPMAN, THOMAS, ADAMS SEBRING, JJ., concur. BUFORD, C. J.: coming
This cause on this to be heard on Petition for been Rehearing, having the Petition considered in the light counsel for the argument respective parties, it is ordered that said Petition be denied adjudged because Petition of record no matter not heretofore presents considered and Court. The Petition presents upon acted relies grounds for new trial not alleged аppearing on available for review appeal. and not record Therefore, rehearing is denied. ADAMS,
TERRELL, JJ., BROWN concur. CHAPMAN, Justices THOMAS and favor SEBRING order denying Petition without comment.
PER CURIAM:
Upon consideration of the petition of counsel for appel- lants for to apply to the leave Circuit Court of Alachua County, Florida nobis, for a writ of error coram it is ordered *7 that said petition be and the hereby same is denied.
TERRELL, CHAPMAN, THOMAS, ADAMS and SE- BRING, JJ., concur.
BUFORD, J., BROWN, J., C. concurring specially order to deny.
BUFORD, J.,C. concurring deny: order to
The above named petitioners having applied this Court for an order allowing the petitioners to apply the Circuit Cоurt of County Alachua for a writ of error coram nobis challenging validity of the judgment of con- viction of crime of rape;
The said petition being considered we find that the con- viction of each of the defendants stands as the judgment of the Circuit Court of County Alachua and has neither been affirmed or reversed the Supreme Court and is therefore not the judgment this Court. This Court having hereto- fore dismissed the appeal cause, entered in this the Court is jurisdiction to enter an order in compliance with said petition.
I therefore think petition should be denied without prejudice petitioners to- apply the Circuit Court of Alachua as they may be advised.
I concur order denying petition.
BROWN, J., concurs. B.
GEORGE SISSON LA FRANCES PORTE (2nd) Term, So. June En Banc