47 Fla. 69 | Fla. | 1904
-The plaintiffs in error, together with Will Polite, were jointly indicted at the fall term, 1902, of the Circuit Court for Columbia county for breaking and entering a dwelling house with intent to commit a felony, and were jointly tried at the spring term, 1903, which trial resulted in the acquittal of the said Will Polite and the conviction of plaintiffs in error, who were sentenced to confinement in the State prison at hard labor for a period of two years. From this judgment and sentence plaintiffs in error seek relief here by writ of error.
The indictment was in the usual form, to which all the defendants jointly interposed a plea in bar setting up their arraignment and trial at the fall term, 1902, of said court upon the same indictment, the submission of the issue to the jury, that evidence on behalf of both the State and the defendants was submitted, argument of counsel had, the charge of the court given, the verdict of said jury finding said defendants guilty of breaking and entering a dwelling house with intent to commit a felony, said verdict being set out in full, and the discharge of said jury after the rendition of said verdict, without the consent of said defendants, and without any necessity therefor, the records of- the court being expressly referred to in said plea. A demurrer to this plea was interposed by the State and was sustained by the court, which ruling forms the basis of the first assignment of error. We are of the opinion that no error was committed here, though it probably would have been the better practice for the State to have replied to the plea, instead of demurring thereto. That an appellate, court, as well as every other court, will take judicial notice of its own records, as far as they appertain to the case in hand, but will not take notice in deciding one case, of what may be contained in the record of another and distinct case, unless it be brought to the attention of the court by being made a part of the record of the case under con
This is the second time that this case has been brought to this court on writ of error. See McNish v. State, 45 Fla. 83, 34 South. Rep. 219. For the reasons set forth in the opinion therein the judgment of the Circuit Court entered upon the verdict mentioned in this plea was reversed and the case remanded for a new trial. The records of this court so show, and so must the records of the Circuit Court, and we take judicial cognizance of our records, in so far as they relate to this case. See Roberson v. State, 45 Fla. 94, 34 South. Rep. 294. That the reversal of a judgment in* a criminal action by this court and the awarding of a new trial does not preclude the trial of the defendant again for the same offense upon the same indictment, and that such second trial will not put him in jeopardy a second time for the same offense, within the meaning of the constitution, see Lovett v. State, 33 Fla. 389, 14 South. Rep. 837; Gibson v. State, 26 Fla. 109, 7 South. Rep. 376; Johnson v. State, 27 Fla. 245, 9 South. Rep. 208; Golding v. State, 31 Fla. 262, 12 South. Rep. 525.
The second error assigned is- as follows: “The court erred in proceeding with the trial with the jury, as empanelled notwithstanding the disqualified juror.”
Turning to the bill of exceptions as set forth in the record, we find that it discloses that during the trial of the case, after several witnesses had been examined, the State Attorney stated to the court that it had come to his knowledge since the noon recess was taken that day that a mem
The third error assigned is as follows: “The court erred in admitting over the objections of the defendants’ attorney the confession or alleged confession of the defendant, Ben McNish.”
After a careful examination of the bill of exceptions we fail to discover wherein the court committed an error in admitting this confession. It seems to us that the court exercised great caution in regard to the admission of said confession and followed the rule laid down by us in the former opinion rendered in this case. McNish v. State, supra. Counsel for defendants strenuously contends that the confession should not have been admitted in evidence
The fourth and last error assigned is that “The court erred in denying and overruling the defendants’ motion for a irew trial.”
We find that twelve grounds were set forth in said motion, but those only are argued by counsel as to the sufficiency of the evidence to warrant a conviction and the correctness of certain charges given by the court. We confine ourselves to the grounds argued. Hoodless v. Jernigan, supra, and authorities there cited. We find upon examination that there was ample evidence to warrant the jury in finding the defendants guilty. Said finding was concurred in both by the jury and the trial judge, and, although there was some conflict in the testimony, we must follow our long established practice and refuse to disturb the verdict. As was said by this court in Browning v. State, 41 Fla. 271, text 272, 26 South. Rep. 639: “It has been repeatedly held by this court that where there is any evidence to support the verdict it will not be set aside by the appellate court as against the evidence unless it may well be assumed that the jury were improjperly influenced by considerations outside of the evidence; and that a verdict will not be set aside by such court where its propriety depends entirely upon the credibility of conflicting witnesses.”
Finding no reversible error in the record, the judgment of the Circuit Court must be affirmed, and it is so ordered; the costs of this appellate proceeding to be taxed against the county of Columbia.
Hocker, Carter and Cockreel, JJ., concur.
Taylor, C. J., absent on account of sickness.
Whitfield, J., disqualified, took no part in the consideration of this case.
