29 Fla. 302 | Fla. | 1892
The Attorney-General moves to docket and dismiss this case. It appears that on May 4th, 1891, in the Criminal Court of Record of Duval county, Mitchell was found guilty of an assarrlt with intent to murder one Hubbard. Motions in arrest of judgment and for a new trial having been made and overruled, Mitchell was sentenced on the same day to imprisonment in the State prison at hard labor for the period of two years. Sixty days were allowed for preparing a bill of exceptions. On the 8th day of the following June the following order was made in the cause by that court"': “ Upon application made in open court for writ of error and supersedeas in the above cause, it is considered and ordered by the court that a writ of error do issue, and that said writ of error be a supersedeas upon the affidavit of insolvency of defendant on file; and it appearing to the satisfaction of the court that the allegations contained therein are true.” There is in the informal transcript of the record filed here by the Attorne-General in support of the motion, an affidavit of
The ground of the motion to dismiss is, that no other or further step has been taken by Mitchell to prosecute Ms writ of error and give effect to the same. Mitchell is still in the Duval county jail.
The transcript was filed here on the 23d day of March of the present year (1892), of which day the motion as amended is made, though in fact the Attorney-General had a few days previously moved on a certificate of the Clerk of the Criminal Court that no writ of error had been issued, and a certified copy of the above order granting the writ of error and directing that it should operate as a supersedeas.
The controlling question is, whether or not the actual issue of the writ is essential to our jurisdiction.
The Criminal Court of Record of Duval county was established by an act of June 3d, 1887 (Acts of 1887, p. 111), and by the 23d section of a statute approved the same day, and entitled “An act prescribing the jurisdiction and powers, and regulating the proceedings in the Criminal Court of Record,” (Chapter 3731, pp. 100-103, Acts of 1887,) it is provided that the same rules, practice and procedure that obtain in appeals
A writ of error is a new action, and not a continuation of the former suit, the alleged errors in which it is sought to have reviewed and corrected. 2 Tidd’s Practice, 1141; International Bank vs. Jenkins, 104 Ill., 143; Ripley vs. Morris, 2 Gilman, 381; 6 Am. & Eng. Enc. of Law, p. 812.
Unless there is something in the statutes governing-writs of error in criminal cases, which changes the rule, we cannot see that the issue (if not, it may be, •the issue and service) of a writ of error is not essential to our jurisdiction, or that at least until a writ has ¡been issued there is no suit in or writ of error to dismiss.
Writs of error in criminal cases are not writs of right in this State, They were such in capital cases under the third section of the act of January 11th, 1848, sec. 3, p. 455, McClellan’s Digest, but this was changed by the act of February 12th, 1861, sec. 11, p. 456, McClellan’s Digest, which puts capital cases upon the same footing in this respectas other criminal cases. Before a writ of error can issue in any criminal case, there must be an inspection of the record by a court, or a justice or judge, given by the statute the power to act in the premises, and such court, or justice or judge, must be of the opinion that there “is just cause for allowing a writ of error,” and an order allowing it must be made, and thereupon the writ of error is to .issue.
The order for a writ is, however, not the writ. It is, in so far as the convicted person is concerned, a judi
There are in the statute certain provisions as to superseding the judgment complained of.
In the first place, the statute of 1848. as applicable-to convictions in the Circuit Court, and such statute as modified by the above-mentioned Criminal Court of Record act, as applicable to convictions in the Crim
It is plain, from these provisions that they contemplate where the case is not capital, a release of the convicted party from custody ; and yet though the payment of costs and the taking of the recognizance by the clerk, give the writ of error the effect to suspend or supersede the execution of the sentence, they do not of themselves authorize the release of the party, if he be in custody, by the officer having him in custody. On the contrary, an express order to that effect by the court or judge allowing the writ is essential by the very terms of the statute.
The statute does not, however, contemplate a suspension of the execution of the judgment only in cases where costs can be paid and recognizance given as required above, but it also provides that when the defendant shall be utterly unable to pay the costs in whole or in part, and shall make oath before the court or the clerk thereof, and also establish by credible testimony, that he has no property or other means of payment either in his possession or under his control, and has not divested himself of his property for the purpose of receiving the benefit of his oath, and is also utterly unable to enter into the recognizance required to secure the payment of such judgment, fine and costs,
To secure discharge from custody, in bailable cases, where the plaintiff in error is utterly unable to pay ■costs, in whole or in part, and makes oath and furnnishes the proof, contemplated by the preceding, or seventh, section, as to his having no property or other means of payment, and as to his not having divested himself of his property, and as to his being unable to enter into recognizance to secure the payment of the judgment, fine and future costs, the plaintiff in error must not only enter into a recognizance with one or more sureties conditioned that he shall be personally forthcoming to answer and abide the final order, sentence or judgment that may be passed in the premises by the Supreme or other appellate, as the case maybe, ■court, and in case the cause is remanded to the Circuit ■or other trial court, as the case may be, then that he •shall personally be and appear at the next term of the ■court in which he was convicted, in the county in wdiich the cause was originally tried, thereafter to be held, to answer in the premises, and not to depart from the
This order should never be refused in any bailable case where the provisions precedent thereto are complied with.
It is clear, we think, that the purpose of this statute of 1848, as amended in 1861, is, in the first place, to make the right to a writ or suit in error in criminal causes dependent on judicial discretion — a discretion always exercised liberally — and, second, to prescribe the conditions under which the writ or suit shall operate a supersedeas to the enforcement of the judgment and, third, to expressly limit what might otherwise be understood to be an- effect of a supersedeas, proprio vigore, in bailable cases, by requiring an order of discharge from custody when the applicant for the writ, is in custody. There is, however, nothing in the statute that dispenses with the writ as essential to the exercise of our appellate jurisdiction. The writ is the process by which the record or cause is removed to the appellate court. Brooks vs. Norris, supra, Kitchen vs. Randolph, 93 U. S., 87. When there has never
In Ex parte Ralston, 119 U. S., 613, a writ of error to the Supreme Court of Lousiana had been allowed by the Chief-Justice of that court, and before any writ actually issued, au order that the writ should operate as a supersedeas was made by a justice of the United States Supreme Court. The latter court refused an application of Ralston for-a mandamus to compel the clerk of the State court to transmit to the former court a transcript of the record .of the cause, and also refused a motion made by the other side to vacate the supersedeas order, and held th|it as no writ of error had issued, they had no jurisdiction of the suit, and no authority over the clerk in the matter about which the mandamus was asked, and that, for the same reason, the supersedeas order was of no legal effect; that a supersedeas could not be allo wed except as an incident to an appeal taken or a writ of error actually sued out.
It is to be observed that the statute does not require an order that on compliance with the supersedeas pro-, visions the writ of error shall operate as a supersedeas. When the writ is allowed and issued, a compliance with the mere supersedeas provisions, though not authorizing a. discharge of the prisoner, has of itself the effect of arresting or superseding otherwise the execu
Had the writ of error been promptly issued in this case, we do not say the affidavits mentioned in the outset of this opinion would not have attached to it and given it the effect of a supersedeas, notwithstanding they were filed before its actual issue; we are inclined to think they would, but as no such writ has ever been issued, they are of no effect, and there has never been any suspension of the sentence. It should have been executed. If no application was made to the clerk for the issue of the writ, he should have delivered to the sheriff the warrant for executing the sentence, in compliance with section 35, p. 460, McClellan’s Digest, and if it was delivered the sheriff should have exech
The motion must be denied, and it will be ordered accordingly.