34 Fla. 175 | Fla. | 1894
The plaintiff in error, together with James Reynolds,. Jesse Greek and Willis Hodges, were indicted in the-Circuit Court of Baker county for the murder of James. Sweat. Upon the first trial of the case all of the defendants except Hodges, who was not tried jointly with them, were convicted of manslaughter. This conviction, upon writ of error to this court, was reversed and a new trial granted. (33 Fla., 301, 14 South. Rep. 723).
■ The transcript of the record is not very skilfully prepared, but it appears from the same that the defendants who once plead not guilty to the indictment without withdrawing their plea of not guilty, or first obtaining any leave of court therefor, filed a paper purporting to be a plea in abatement. This plea in abatement attempted to set up certain illegalities and irregularities in the grand jury which found the indictment. Upon motion of the State Attorney this plea was stricken from the files of the court. The defendants then moved the court for leave to withdraw their plea of not guilty, and for leave to file the plea in abatement. This motion was denied by the court. Then, as the case was about to proceed to trial, ‘ ‘the defendants protested against being tried without arraignment, and insisted that if they are to be tried upon said charge that they be arraigned and allowed to plead thereto as they may deem advisable.” This-objection was overruled by the court, and the defend
Nine assignments of error are filed herein. Such of them as are argued in the brief of the plaintiff in error will be herein considered. In accordance with the-rule laid down by this court in such cases, the-assignments of- error not argued are treated as abandoned. The first assignment of error is not argued.
The first and second assignments'of error relate to the-refusal of the court to rearraign the defendants. It is contended that as the former verdict of guilty of manslaughter was an acquittal of the defendants of all higher degrees of homicide, that the issue to be-presented to the jury on the new trial was whether the-defendants were guilty of any of the decrees of manslaughter. (The offense was alleged to have been committed before the Revised Statutes abolishing degrees in manslaughter went into effect). As the indictment upon its face charged murder in the first degree,, of which defendants were impliedly acquitted, they claimed that the issue of their guilt of manslaughter is a new one, and that they should have been re-arraigned and permitted to plead anew to the same. The authorities uniformly support the proposition that when a new trial is granted in a criminal case, whether by the court of original jurisdiction or upon reversal of the conviction by an appellate court, no further arraignment or plea is necessary, that the case stands just as it did before conviction, and is just as if no trial had been had. Levy vs. State, 49 Ala., 390; Byrd
The third assignment of error is based upon the admission of the evidence of Nathan Peas, a State witness. The objection to this testimony was that it was incompetent, irrelevant and not a part of the res gestee. The objection Avas not Avell taken. The evidence of this witness tended to show that the defendant was near the scene of the difficulty on the night the same occurred. It was properly admitted.
The fourth assignment of error Avas that the form of oath used in capital cases was administered to the jury. Such an oath is recited in the bill of exceptions as having been administered to the jury, but it is not the province of a bill of exceptions to show the selection, empannelling and SAvearing of the jury. These matters properly belong to the record. The record states that the jury was “duly tried, accepted and sworn according to'law.” The record shows that the jury were properly sworn, and wTe cannot upon this subject regard any contradicting statements of the bill of exceptions, or look beyond the record. Potsdamer vs. State, 17 Fla., 895; Garner vs. State, 28 Fla., 113, 9 South. Rep., 835; Brown vs. State, 29 Fla., 494, 11 South. Rep., 181; Brown vs. State, 29 Fla., 543, 10 South. Rep., 736; Palmquist vs. State, 30 Fla., 73, 11 South. Rep., 521.
The fifth assignment of error is not well taken. The testimony of Dr. Williams as to statements made to
The sixth, eighth and ninth assignments of error are1 based upon the charge of the court. Two paragraphs have been selected from the charge of the court and presented to us to sustain these assignments. The record affirmatively shows that other instructions besides those complained of were orally given to the jury by the court but they are not included in the bill of exceptions or brought up by the record in the case. We can not consider these assignments. The rule in this respect has been thus stated: “Where a part of a charge is excepted to, the whole charge should be considered, and if the charge considered as a whole is free from the objection urged the exception should be overruled.” Andrews vs. State, 21 Fla., 598. A similar rule has been laid down in Pinson vs. State, 28 Fla., 735; Smith vs. Bagwell, 19 Fla., 117; Terry vs. Buffington, 11 Ga., 337; S. C. 56 Am. Dec., 423; Elliott’s Appellate Procedure, Section 193. Not having the whole charge before us we can not tell how these portions not brought before us might have modified or affected the construction of the paragraphs excepted to. All presumptions being in favor of the ruling of the court below, we could not find reversible error, upon being shown only two isolated paragraphs-of the charge given by the Circuit Judge. In order for us to consider exceptions taken to the instructions given by the court in its charge to the jury, the whole charge should be brought up by the bill of exceptions.
The judgment of the Circuit Court is affirmed.