54 Fla. 73 | Fla. | 1907
— An information was filed in the criminal court of record for 'Duval county charging the plaintiff in error with embezzlement of money held by him as treasurer of a lodge of Knights of Pythias. The defendant after pleading not guilty was convicted, and on writ of error assigns as errors the denial of challenges to the array of jurors and the denial of a motion for a new trial.
The Attorney General for the state suggests that there is no 'properly authenticated bill of exceptions in the transcript of-the record in this cause. There appears in the transcript many pages of matter over a certificate “We, the undersigned, do hereby certify that we were present at the trial of the above entitled cause; and have read the bill of exceptions herein filed; and we hereby certify that the same sets forth a true copy of the proceedings thereof, and all the evidence given therein. Signed this 21st day of June, A. D. 1907. N. P. Bryan, L. R Taylor, N. Simpson Gaines.” Above this certificate is a statement that at the time for presentation of the bill of exceptions there being no judge of the court by reason of the suspension of the judge, the same was presented to the three persons for authentication.
At common law any ruling of the trial court involving points of„ law growing out of incidents arising at the trial which were not required to be included in the record proper of the cause and which were by the party objecting deemed harmful to him, could be reviewed by an appellate court on bills of exceptions. Such bills of exceptions were prepared and authenticated by the presiding judge during the progress of the cause.
Section 1696 of the General Statutes is as follows:
“1696. (1268) Procurement of bills of exceptions. —The judge of any court of this state, upon a trial at law in said court, shall sign, upon request, any bill of exceptions taken during the progress of the cause and tendered to the court if said bill as tendered fairly states*76 the truth of the matter and the exception designed to be taken, and the same shall, when signed, become a part of the record of such cause; and in case the judge refuses to sign a bill of exceptions when so tendered for that purpose, it shall be lawful for three jpersons to sign the same in the presence of the judge and certify that the same was presented to the judge and he refused to sign it, which bill shall be as valid and have the same force as though it were signed bpr the judge of said court; and the court shall permit the same to be filed and become a part of the record. And if the judge refuses to let the same be filed as aforesaid, the supreme court may, when such case is brought before it by writ of error, upon affidavit of such refusal, admit such bill of exceptions as a part of the record.”
Rule 97 of the Circuit Court Rules provides: “The bill of exceptions shall be made up and signed during the term of the court at which the verdict is rendered or trial had, unless by special order further time is allowed. In case such special order is made, it shall be entered in the minutes, and in making up the bill of exceptions, the fact that such an order was made shall be mentioned therein, or shall otherwise appear in the record.”
The statutes of the state and rules governing the circuit courts of the state provide the mannr and time of making up and filing a bill of exceptions, so that it may become a part of the transcript of the record brought to the appellate court by writ of error. Unless the statutes and the rules governing the preparation and authentication of bills of exceptions are complied with, the attempted bill of exceptions is a nullity and cannot be considered by the appellate court. Smith v. State, 20 Fla. 839; Myrick v. Merritt, 21 Fla. 799; Picket v. Bryan, 34 Fla. 38, 15 South. Rep. 681; Jacksonville St. R. Co. v. Walton, 42 Fla. 54, 28 South. Rep. 59. It is the duty of the plaintiff in error to have the bill of ex
The statute expressly provides that the judge of any court shall sign upon request any bill of exceptions taken during the progress of the cause and tendered to the court, if it fairly states the truth of the matter and the exception taken; and the same shall when signed become a part of the record of such cause; and when the judge refuses to sign a bill of exceptions when properly tendered, it shall be lawful for three persons to sign the same in the presence of the fudge and certify that the same was presented to the judge and he refused to sign it, then said bill shall be valid and have the same force as though it were signed by the judge. When the bill of exceptions is authenticated by three persons under the statute it must appear therein that the persons so authenticating were present at the trial and had knowledge of the matters stated in the bill of exceptions and they must certify to the truthfulness of the bill of exceptions. Williams v. Pitt, 38 Fla. 162, 20 South. Rep. 936.
It does not appear in this case that the bill of exceptions was presented to the judge of the trial court and that he refused to sign it, or that it was signed in the presence of the judge. This being so the so-called bill of exceptions is a nullity and cannot be considered by this court even though it appears at length in the transcript certified by the clerk of the trial court. If the bill of exceptions had been presented to the judge during the
It being made to appear during the argument, and not controverted, that the bill of exceptions was duly prepared for preseiitation to the judge within the time allowed by the special order of the court, but that the judge at such time was suspended from office and that no successor to fill the office of such judge was appointed or qualified until some time after the lapse of the time fixed by such special order for the presentation of such bill of exceptions, but that such duly prepared bill of exceptions was presented to or filed with the clerk of such court within the time limited by such special order, approved and attempted to be certified by the solicitor of the Criminal Court of Record who prosecuted said cause and by two other persons who witnessed the trial thereof, and as the defendant appears to have been guilty of no
If the original bill of exceptions be duly authenticated the plaintiff in error may upon due notice to the attorney general move for leave to have the certified transcript of the record on file here sent to the clerk of the trial court to have the bill of exceptions in the transcript made to conform to the original as certified by the judge.
It is so ordered.
Shackleford, C. J., and Cockrell, J., concur;
Taylor, Hocker and Parkhill, JJ., concur in the opinion.