Lovett v. State, 29 Fla. 356

Raney, C. J.:

That it was necessary for the defendant, who was on trial for murder in the first degree, and was convicted of it, to be personally present during the trial and preceding the sentence, as well as when sentenced, is of course not denied; Holton vs. State, 2 Fla., 476, 500; Gladden vs. State, 12 Fla., 562, 577; Irwin vs. State, 19 Fla., 872, 891; Sneed vs. State, 5 Ark., 431; and that it is necessary that the record should show his personal presence is equally unquestionable. 1 Chitty’s Cr. Law, 337, 411, 414; Bishop’s Cr. Pro., sec. 1180; sec. 11, Bill of Rights Constitution 1885. It is by this record, as it stands in the trial court, that the' appellate court must decide whether there has been a lawful trial and conviction. Though it may be regarded as settled that where the personal presence of the accused is necessary in point of law, the record must show it, yet it does not seem necessary that there should be in the record an express statement of his presence at every stage of the cause to which such presence is essential. The decision in Irvin vs. State, supra, is that where the record shows that the prisoner was duly arraigned, was present at the trial and at the sentence, and no interval, or adjournment of the court, appears between the commencement of the trial, the verdict and the judgment, the presumption is that he was in court during the whole time; and in Brown vs. State, 29 Fla.,-, 10 South, Rep.,-. it is said. it is sufficient if the presence appear from the record by necessary and reasonable implication. In Jeffries vs. Commonwealth, 12 Allen., 145, 154, the record showed personal presence at the arraignment, and ‘ at the sentence, and it was held that it was not necessary that it should state in direct terms that the prisoner was present at the rendition of the verdict and during-all the previous proceedings of the trial, and although such presence was in fact essential. In a cáse in which the record stated that the prisoner came into court at-the commencement of the trial, on March 7th, and was at the bar when the jurors were sworn, and then set forth that forasmuch as it appeared that j ustice could not be done if the court should proceed without interruption upon the trial, the same was continued by adjournment from day to day till ihe 26th of March, when the jury rendered their verdict, and also showed that when asked if he had anything to say why sentence should not be pronounced on him, he announced that he had nothing further' ‘ ‘'than as before he had said,” the Court of - Appeals of New York held it sufficient, as stating all that was necessary to warrant the inference that the prisoner was present during the entire sitting of the court from the calling of the jury to the rendition of the verdict. It is saicl in the opinion: “The allegations 5f a continuance of the trial sufficiently indicates that it was with the incidents before ■described of which the presence of the prisoner was ■one. Besides, when facts are stated sufficient to confer jurisdiction upon a court of such high attributes, the inference is that as to its continued proceedings omnia rite eeta. Hence, it is not usual in either civil or criminal cases to state on the record the occurrence of the necessary incidents between the selection of the jury and the rendition of their verdict.” Stephens vs. People, 19 N. Y., 549. See also Stephens vs. People, 4 Parker’s Crim. Rep., 396; State vs. Langford, Busbee’s Law Reports, 436; Rhodes vs. State, 23 Ind., 24. In Schrimer vs. People, 33 Ill., 276, where the personal presence of the the prisoner was shown by the .arraignment, and no interval appeared between it, the trial, verdict and judgment, it was held that the presumption was that the prisoner remained in court the whole time, and the view entertained was, (like that in West vs. State, 22 N. J., Law, 212), that where the prisoner’s presence can, by fair intendment, be collected from the record, it is sufficient. In State vs. Craton, 6 Iredell, 164, the doctrine announced is that ir is sufficient if the prisoners presences a necessary or a reasonable implication from the record. At a term following the indictment and arraignment, and committal of the prisoner to close custody, there was, as the record shows, an order by the court “that the prisoner, John P. Craton, be brought to the bar,” and, immediately thereafter it shows that the jury were sworn and empanelled, and that they found “the prisoner at the bar guilty,” and thereupon there was-judgment “that the prisoner be taken back to the prison, &c., from which judgment the prisoner prays an appeal and gives bond, &c.” The record was held sufficient. It is held in State vs. Wood, 17 Iowa, 18, that where it appears from the record that the prisoner was present at the commencement of the trial and at the sentence, it will be presumed, in the ab ■ sence of any affirmative showing to the contrary, that he was present during the trial and at the rendition of the verdict; and in Harriman vs. State, 2 G. Greene, 270, 284, it is said that even if the record after arraignment remained perfectly silent on this point, we could not by implication conclude that the judge neglected his duty in this particular, but we should naturally suppose, by legal intendment till the contrary appears, that the court had performed its duty in all those particulars and had extended to the accused his-constitutional and legal rights. In Sweeden vs. State, 19 Ark., 205, it was held that where it does not otherwise appear, affirmatively on the record that the accused was present during the trial in the trial court, the appellate court will infer his personal presence from the order incorporated in the judgment of the court, that he “be and remain in the custody of the sheriff until the fine and costs are fully paid.” We cannot say that the reasoning of the last of these cases impresses us as being satisfactory.

There are cases in which the law on this point has not been so liberally applied in favor of the State, and among them are, Cole vs. State, 5 Eng., (Ark.), 318; State vs. Cross, 27 Mo., 332; Dunn vs. Commonwealth, 6 Penn. St., 384; Saggs vs. State, 16 Miss., (8 S. & M.), 722, but they need not be noticed, since the more liberal cases do not, in our judgment, establish the sufficiency of the record proper, or the transcript excluding the bill of exceptions, now before us. There is nothing to show that the accused was ever personally present in the court before he came there to be sentenced. There is no arraignment shown; nor does it appear that the issue which was “joined,” was tendered by him in person. The only affirmative showing of the record as to his presence at the trial is, that he was there by his attorney. This does not show or imply or justify the inference that he came or was there in person; which the record must do affirmatively either expressly or by reasonable intendment. There is moreover, nothing in the record of the sentence that in any wise supplies the deficiencies or cures the defects of the record of the trial. It represents the defendant as coming again, and gives the manner of his coming, that it was “in his own proper person and attended by his counsel.” These quoted words are descriptive of his second coming only, just as the words “by their respective attorneys” are descriptive of the coming of the State and prisoner at the trial. We can not presume against the prisoner by extending them to what they are not used as descriptive of or in connection with. Nothing beyond what appears substantially upon the face of a record can be presumed for or against the record, in so far as those things which are essential to its validity as the legal evidence of a judicial proceeding. Dyson vs. State, 26 Miss., 362.

In the case of Sperry vs. Commonwealth, 9 Leigh, 623, the prisoner was arraigned in September, and the case was then continued to the next term of the court, and at such term, on the 27th day of April following, as shown by the record, “ came as well the attorney for the commonwealth, as the prisoner by his attorney, and thereupon came a jury,” etc., who having heard the evidence and the argument of counsel, retired to consider of their verdict, and not agreeing on it that day, were adjourned over till the next day, and on such day, April 28th, as the record states, the venire empanelled upon the trial of this cause on yesterday again this day appeared in court and retired to consider of their verdict, and returned into court ’ ’ with a verdict of guilty, and fixed the punishment, “ whereupon the prisoner was remanded to jail.” The decision of the court was that if it could be inferred from the circumstance of the prisoner’s being remanded to jail, that he was personally present during the proceedings on the 28th of April, there was no such circumstance stated in the proceedings of the 27th ; that the only statement in regard to the appearance of the prisoner on that day was that he appeared by his attorney, without any circumstance stated from which it could necessarily be inferred that he was necessarily present. That an appearance by an attorney could not imply that the prisoner was personally present in court, and therefore the record was deficient in what th'e law regards as essential to be stated in such a cause. Hooker’s Case, 13 Gratt., 763, 766, was one in which the record showed that on April 24th, when a motion for a new trial was made, and again on the ■26th of the same month, when the motion was overruled and judgment rendered, the defendant appeared by attorney, there being nothing to show that he was personally present on either day ; and it was held that the record was insufficient. In Warrace vs. State, 27 Fla., 366 ; 8 South. Rep., 748, the record as to the prisoners’ presence in court prior to their sentence was in effect that the cause came on to be heard on a stated day and was heard on that day, “Judge David S. Walker, presiding, on the bench, and E. C. Love, State’s Attorney, N. R. Walker, for defendants ; their plea, not guilty,” and it was held that there was nothing to show that the accused were arraigned, were personally present in court, or personally pleaded to the indictment. See also State vs. Matthews, 20 Mo., 55.

It is unnecessary to say wdiat our conclusion would be if it appeared from the record that the prisoner had been formally arraigned, whereby his personal presence would be shown, and there was nothing further than what is now to be found in the record indicating his subsequent absence during the trial; but, in the absence of such arraignment, or other affirmative showing that the prisoner was personally present in court when he plead, we are entirely satisfied that it can not be said that the record proper, or as distinct from the bill of exceptions, shows affirmatively, either expressly or by reasonable intendment, or in substance, that he was personally present in court at any time prior to his being sentenced.

Satisfied that the record proper does not show affirmatively, even by reasonable intendment, the personal presence of the prisoner in court at the trial, or at any time prior to his being sentenced, it becomes necessary to decide whether or not the bill of exceptions can be invoked to supply or cure the deficiency. In the case of Brown vs. State, supra, decided at the present term of this court, it was held that the fact that a jury in a criminal cause was sworn, must be shown by the record proper, and that the absence of such a showing is not supplied by a statement in the bill of exceptions that they were sworn. The reason. for this conclusion is, that it is not the office of a bill of exceptions to supply what it was previously necessary or usual to insert in.the record proper. Bills of exception must owe their origin to the demands of justice, dictated by experience, that errors of law committed in the trial of causes in matters in pais or of oral procedure, as to which the record did not speak or was, in other words, entirely silent, should be the subject of appellate review. The purpose of their origin was not to ’create a new and optional mode of making a memorial of steps in a cause, which the record, as then made up, preserved ; on the contrary, it was to authorize the making of a memorial of what the record, as then made up, did not preserve. The remedy for any error of .law apparent in proceedings then proper to be-shown by the record was ample, and was a writ of' error, but as those records did not show the rulings of the judge upon the trial, however earnestly they may have been contested, and whatever may have been the-degree of their error, a writ of error c£>uld not reach them, and hence a remedy was necessary, and this-remedy was given by a bill of exceptions. The remedy given by the statute of Westminster the Second, 13 Ed. I, A. D. 1285, was where one of the parties “doth allege an exception,” and the nature of the remedy was to require the judge to make, on the application of" the party excepting, a record of the ruling, the exception and relevant matter, so that a writ of error could reach it, and then judgment was given in the appellate-court “according to the same exception, as it ought to-be allowed or disallowed.” No exception was ever necessary to take advantage of an error apparent on-, the record proper. Jones, Varnum & Co. vs. Townsend, 21 Fla., 431, 438. It is said in Bacon’s Abridgement, that a bill of exceptions ought to be upon some' point of law either in admitting or denying evidence,, or a challenge, or some matter of law arising on a fact• not denied, in which either party is overruled by the-court. Vol. 2, Title, Bill of Exceptions. In Davies vs. Lowndes, 1 M. & G., 473, where a jury at the time-of rendering their verdict for a defendant, delivered written statement to the effect, “that it was the unanimous verdict that the demandant had not made out', her pedigree; that the conusor had entered into, and was in the actual possession of, the estates devised by the will of T. J. Selby, before and at the time of the levying of the fine in 1784 ; and that he had taken and used, and was then known by, the name of William Selby,” and the defendant sought to have this state-, ment incorporated in a bill of exceptions tendered by the plaintiff. The jury had not been called upon to find on these points. The motion was denied. In support of the motion it was urged that the bill of exceptions should contain a history of the proceedings at the trial, and that the statement was a part of them and the verdict not intelligible without it; but as an answer to this, it was observed by the court that the proper object of -the bill of exceptions is to contain the exceptions made to the directions and rulings of the judge, together with so much of the evidence given at the trial as is necessary to make the exception intelligible to the court of error and furnish grounds for the allowance or disallowance of the exception; and that it. was unnecessary that the bill of exceptions should contain the statement of the verdict, although it more commonly does so, for the bill may be appended to the judgment roll, which contains the pleadings, the issues joined, the verdict and the judgment, and that upon legal, reasoning there was no stronger ground for putting the statement' in the bill of exceptions than in the postea immediately before the verdict. It was decided in Belton vs. Gibbon, 12 N. J. Law (7 Halstead), 76, that a bill of exceptions can not be taken on the argument and decision of a demurrer to pleadings, and Ewing, C. J., speaking for the Supreme Court of New Jersey, said that he did not feel at liberty fo look into the document, that a bill of exceptions taken on the argument and decision of a demurrer was a novelty, and unauthorized by their statute, (substantially that of 13 Ed. I, supra,) which had never been construed to authorize a bill of exceptions on a demurrer to pleadings, and that an approved instance of the kind was nowhere to be found.

There is nothing in our statutes changing the nature of the office of a bill of exceptions, or its effect as to the record proper. It is true the power given by the act of January 7th, 1853, to this court, after the decision in Carter vs. Bennett, 4 Fla., 283, to review the discretion exercised by the trial court upon motions for new trial, often brings the entire testimony here and extends the scope of our inquiry, but it still only presents matters in pais, as to which the record, as it appears upon the minutes of the court, is entirely silent. It is said by Blackstone (Book 3, p. 372) that the bill of exceptions is in tie nature of an appeal, examinable not in the court out of which the record issues for the trial at nisi prius, but in the next immediate superior court upon a writ of error after judg ment given in the court below; and in Gardner vs. Baillie, I. Bos. & Pull., 32, it was held that a bill of exceptions is no part of the record in the court below, and consequently could not be included in the taxation of the costs there ; see also Bell vs. Potts, 5 East, 44. It is true that with us the original bill of exceptions does not go to the appellate court, as it did in England (Gardner vs. Baillie, supra), but is filed in the trial court, and a copy thereof duly certified, is sent to the appellate tribunal; Rabon vs. State, 7 Fla., 9 ; still it is undeniable that the only end to be subserved by a bill of exceptions is a proceeding in an appellate court. It is a record for that purpose, and' nothing more is meant to be effected by our statute (sec. 1, p. 454, McClellan’s Digest) when it says that the bill “shall, ■when signed, become a part of the record of such ■cause it is not a record for, nor is it the basis of, any proceeding in the trial court. It is not even evidence, on a subsequent trial, in that court, of wliat a •witness, who may have died since the former trial, tesiified to at that trial. Simmons vs. Spratt, 26 Fla., 449 ; 8 South. Rep., 123. It is usually made up after the ordinary record of the trial in that court has been completed and signed by the judge and the term adjourned. Whether or not a bill of exceptions shall in .any case ever be made up is entirely dependent upon the will of the party taking the exceptions, and is solely for his benefit, instead of being a public duty of court officials incident to the trial of causes, as the making of the ordinary record in at least a criminal cause is. It is said (2 Tidd’s Prac., 863), that the bill ■of exceptions is either tacked to the record or not, and that if it be not tacked to the record, it is necessary to set out the whole of the proceedings juevious to the -trial, but otherwise it begins with the proceedings after issue joined. The practice with us is, to tack the transcript of the bill of exceptions to the transcript of the record proper, and this is the course which has been pursued in the case before us. Assuming, yet not holding, that the other course is permissible under our statute and rules governing appellate proceedings, it must still be the fact that the bill must “set out the whole of the proceedings previous to the trial,” as they are shown by the record, and not otherwise.

Those statements of the bill of exceptions which are relied upon must be regarded as mere prefatory recitals, intended to connect the 'bill with the cause in which it was intended to be used; they are not the subject of any ruling or exceptions as to which the bill was intended to speak, or does speak, and hence, are not matters as to which the bill can be regarded as speaking, or does lawfully speak. They are statements entirely de hors the functions of the bill, and can no more be noticed as extending or affecting the statements of the record than if they were not in the bill.

Judging by the only evidence which the law permits us to consider, the plaintiff in error has been tried and found guilty of murder without being personally present at the trial, and this being so, the judgment must be set aside and a new trial be granted.

II. The record entry as to the swearing of the jury is sufficient. Garner vs. State, Fla., 28 Fla., 113; 9 South. Rep. 835, and authorities cited. This is settled in Florida until it shall be changed by statute.

III. It is objected that there is error in the sentence, in that it designates the Duval county jail as the place of execution. In Savage and James vs. State, 18 Fla., 909, 996, this was held to be error under our statute. Of course it is not such error as would give a new trial, and whether or not it would be sufficient to require a reversal of the judgment and a remanding of the cause for a new sentence, we are not called upon to say. In future proceedings the error can be corrected.

There is nothing in the point that the sentence as rendered and shown by the record is not the judgment of the court. It is palpably the approved formal expression, consideration and judgment of the court, pronouncing the sentence of the law, and reading, as it does: “it is therefore considered by the court that,” &c.; it is not a mere recital by the clerk of what the court did. Gray vs. State, 55 Ala., 83.

Judgment reversed and new trial granted.

Case Details

Case Name: Lovett v. State

Court Name: Supreme Court of Florida

Date Published: Jan 15, 1892

Citation: 29 Fla. 356

Court Abbreviation: Fla.