45 Fla. 76 | Fla. | 1903
. The plaintiff .in ..error, hereinafter.referred, toms..the,def • fendant,. at the. Spring term,. 1901, of the. Circuit .Conrit-or:' Washington county, was indicted for murder,,.in, the,- first-degree, and was tried, convicted, :of, murder in... the.,, third;' degree and sentenced..at.the,Bpriflg term,,.; -1903,-mf said, court, -and seeks, a.reversah.by, writ of terror..»' r. ,
But two ..errors- are .assigned, the; first, of,, which is that,, the court erred in. overruling defendants-, ¡ipotion form; new trial upon the grounds therein, stated, Ayhich -were tq ■ the effect that the verdict, was- contrary to the evidence,-■ against the .weight , of .the... evidence-and unsupported», thereby, and that. the, motion .for-a,, special venire and • tlie order of the, .court grantting same.-were made in the absence of the defendant from the court room.. - Other grounds were contained in said motion for- a new trial, but they are not argued here, and, therefore, must be eosidered as abandoned. . ...
The court has carefully considered all the evidence and
In considering the grounds of said motion to the effect that the defendant was absent from the court room at the time that the motion and order for the special venire were made, it is sufficient to say that it appears from the bill of exceptions that the trial judge, at the time of passing upon the said motion' for a new trial, stated that he knew of his own personal knowledge that the defendant was personally present in court when the said motion was made and granted, and thereupon directed the clerk to make the minutes so show. It was perfectly competent and proper for said judge to order the clerk to correct the minutes so as to make them speak the truth. Ammons v. State, 9 Fla. 530; Brown v. State, 29 Fla. 494, 11 South. Rep. 181; Olive v. State, 34 Fla. 203, 15 South. Rep. 925; Rodriquez v. State, 32 Tex. Crim. App. 259, 22 S. W. Rep. 978; Kaufman v. Shain, 111 Cal. 16, 43 Pac. Rep. 393, S. C. 52 Am. St. Rep. 139, 16 Ency. Pl. & Pr., 29. This action of the trial judge is conclusive and binding. It therefore follows that no error was committed in the overruling of the motion for a new trial. This makes it unnecessary for us to determine what the effect would have been had the defendant been absent from the court room at the time the motion and order for the special venire were made. Lane v. State, 44 Fla. , 32 South. Rep. 896.
We are of the opinion that the verdict is sustained by the evidence, and, finding no error in the record, the judgment of the court below is affirmed.