Volume 38 — Florida Reports

<p>Appeal from the Circuit Court for Marion county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Writ of Error to the Criminal Court of Record for Duval county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Writ of Error to the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>CRIMINAL LAW — LARCENY—WHEN VALUE OF STOLEN PROPERTY NOT REQUIRED TO BE ALLEGED OR PROVED — DESCRIPTION OF ANIMAL. STOLEN.</p> <p>1. Under section 2449 Rev. Stat. the penalty thereby prescribed follows the larceny of any of the domestic animals therein named, regardless of their value. In such cases where the grade of the offense or the penalty prescribed therefor is not measured ■ by or dependent upon the value of the property stolen, but it determined entirely by the class or species of such property, is is not necessary in an indictment charging its larceny to allege any value; neither is it necessary to prove any value.</p> <p>2. In an indictment under said section 2449 Rev. Stat. charging the larceny of any of the domestic animals therein named, it is not necessary to describe the animal stolen by its color, fleshmarks, marks or brands, but is sufficient if it describes the animal stolen by the general name of the genus to which it belongs,, giving the name of its owner, e. g.., “one cow, of the goods, chattels and property of A. T. G. P.”</p> <p>3. A taking of property, without a carrying away, or a carrying away, without a taking, is not larceny. The bare finding of a cow at large upon the common range where everybody’s cattle roam at will, with the brand of two persons upon it, the one brand appearing to have been put upon it more recently than the other, and its ear-marks presenting the appearance of having been altered, with no one claiming it or in possession o.i control of it, and with no proof as to how, or when, or by whom the more recent marks and brand were put upon it, and with no proof showing a stealing, taking and carrying of it away by anyone, will not justify a conviction for the larceny of such cow of the persons whose brand is thus found to have been recently put upon it.</p>

Writ of error to the Circuit Court for Levy county. STATEMENT. The defendants in error, who were plaintiffs below, on May 18th, 1881, brought their action in trover against A. E. Hodges in his life-time. The declaration alleged the conversion to his own use by said Hodges •of 499 sticks of cedar timber belonging to the plaintiffs. To this declaration the defendant Hodges plead not guilty.

<p>Writ of Error to tlie Circuit Court for Gadsden county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Writ of Error to the Circuit Court for Calhoun «county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Writ- oí Error to the Circuit Court for Wakulla county.</p> <p>The facts in the case are stated in the opinion.</p>

STATEMENT. The proceeding in the court below was an action of ejectment brought by the plaintiff in error against the defendant in error. Verdict and judgment for the plaintiff, and defendant appealed. The parties are hereinafter designated according to their status in the Circuit Court. The plea was not guilty. It appears from the evidence that the original possession of the defendant was a tenant of George W. Hancock, deceased, who was the husband of the plaintiff.

<p>Writ of error to the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion.</p>

STATEMENT. On February 28d, 1887, the appellant, who was complainant in the court below, brought suit in equity against Edwin P. Hiser and Maria C. Hiser to enforce the specific performance of a contract for the sale of a tract of ten acres of land. A decree was entered dismissing the bill of complaint.

<p>In a prosecution for murder the State offered evidence tending to show that 'William Hall, the defendant, after the homicide had fled to another p>ortion of the State and’ehanged his name. In this connection a witness was permitted to testify, over defendant’s objection, that he “was in South Florida about a year and a half ago, and while there was told by a woman, the reputed wife of the defendant, that she had married a man by the name of William Johnson; that she married him in good faith, but that she had heard that his name was not William Johnson, but was Hall.” Such evidence was hearsay, and should have been excluded.</p>

<p>Writ of Error to the Circuit Court for Bradford county.</p> <p>Motion to strike Bill of Exceptions.</p>

<p>The purpose of the alleged Spanish grant from D >n Alexander Ramirez to Don Vincente Sebastian Pintado, offered in evi- „ dence in this case and excluded by the court, was not to convey the land and water as such, so far as the extension or space of the Bay of Pensacola therein described is concerned, but the right to use the same within said limits, and to the depth stated below the surface of the soil, for the purpose of constructing wharves and houses for bathing, such right being to the exclusion of any similar right in any other individuals, and subordinate to the right of the King and the public to construct wharves with municipal or common funds within said limits; and to this extent it was not within the authority of Ramirez to make the grant, and it was void as to the space therein described as the extension of the Bay of Pensacola. The exclusion of the grant m evidence was proper on the authority of the decision in Sullivan vs. Richardson, 33 Fla. 1, 14 South. Rep . 692.</p>

<p>Writ of Error to Circuit Court for Duval county.</p> <p>Motion to dismiss Writs of Error.</p>

<p>Writ of Error to the Circuit Court for Madison county.</p> <p>The facts in the case are stated in the opinion.</p>

STATEMENT. S. Forclieimer, as agent for Jacob Pollock and Leopold Lowenstein, partners under the firm name oí J. Pollock & Co., filed with the Clerk of the Circuit Court on the 8th of December, 1888, an affidavit for an attachment against George R. Murray and David L. McParlin, partners under the firm name of Gf.

Writ of error to the Circuit Court for Leon county. The facts in the case are stated .in the opinion. Motions to strike bills of exceptions and to dismiss writ of error.

Motions to dismiss appeals. STATEMENT. Appellee, George F. Broughton, filed a bill in August, 1893, against the appellant companies, corporations, the one existing under the laws of Florida, and the other under the laws of New York.

<p>Motion by defendants in error to quash writ of error and to dismiss the cause.</p>

Writ of Error to the Circuit Court for Marion county. STATEMENT. The plaintiff in error, hereinafter called the defendant, was tried and convicted of the offense of embezzlement.

STATEMENT. In October, 1895, Smith filed a bill in the Circuit Court for Marion county against Whitfield and Sanders, and therein alleged that in October, 1876, he made homestead entry upon the S. E. £ of N. E. \ and N. E. J of S. E. •£, Sec. 12, Township 15, S., Range 19 East, in said county; that afterwards, in December, 1883, he' relinquished his entry to Moses Simmons and James A. Curry, but the latter never perfected their homestead entries, and the same were cancelled…

<p>Writ of Error to the Circuit Court for Brevard county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Writ of Error to the Circuit Court for Volusia county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>1. A leading question lias been defined as one which may be answered “yes” or “no.” This is not the most usual definition, or the one most exactly fixing the meaning of the term. The proper signification of the expression is a suggestive question, one which suggests or puts tiie desired answer into the mouth of the witness.</p> <p>2. A question addressed to a witness in examination is not necessarily leading- because it can be answered “yes” or “no.” A leading question is one that points out the desired answer, and not merely one that calls for a simple affirmative or negative.</p> <p>3. An interrogatory which merely asks a witness if he has any knowledge as to a fact which is in issue between the parties, and directs him if he has such.knowledge to state the extent of the same is not objectionable upon the ground of being a leading question.</p> <p>4. The great primary object in the examination of witnesses is to make .known the truth of the matters in controversy. Great nicety upon the subject of leading questions is not conducive to this object, or to convenience in examination, or to the administration of justice.</p> <p>5. In an action of libel, evidence tending to show good ground for suspicion of the truth of the matter alleged to be false is material for the defendant under a plea.of not guilty, not to prove the truth of the charge, but as tending to show a less degree of malice, and in mitigation of the damages to which plaintiff is entitled. Such evidence is also material under a plea of privileged communication as a circumstance to be considered by the jury as to whether the alleged libelous language was published through the express malice of the defendant.</p> <p>6. In actions of libel, those publications which are considered privileged are divided into two classes: absolutely privileged, and conditionally or qualifiedly privileged.</p> <p>7. A definition of a qualifiedly privileged communication, especially applicable to the facts of the present case, is as follows: where a person is so situated that it becomes right, in the interest of society, that he should tell to a third person certain facts, then if he bona fide, and without malice, does tell them, it is a privileged communication.</p> <p>8. In the case of a qualifiedly privileged publication, if the matter is stated in accordance with the above definition, with good motives, and upon reasons apparently good, the publisher will not be liable if the matter stated should turn out to be untrue.</p> <p>9. In cases of qualifiedly privileged publication, the presumption which attends cases not so' privileged of malice from the publication of libelous language does not prevail; the burden of proof is changed, and, in order for the plaintiff to recover, he is called upon affirmatively and expressly to show malice in the publisher. This malice may be inferred from the language itself, or may be proven by extrinsic circumstances. While the malice may be inferred from the publication itself, it is not inferrable from the mere fact that the statements are untrue. The existence or non-existence of such malice where the facts are controverted is a question of fact for a jury.</p> <p>10. That which would otherwise be a qualifiedly privileged publication is not so if the publisher is actuated by malice.</p> <p>11. A letter from an elector of this State to the Governor thereof, in reference to the character and qualifications of an applicant to said Governor to be appointed sheriff of the county in which such elector resides, is not an absolutely privileged, but is a qualifiedly or conditionally privileged publication. The publisher of such a letter can not under the guise of such a communication falsely and maliciously traduce and slander the moral character of such applicant, and if he does so, he makes himself liable to an action therefor. On the other hand, such applicant can not recover damages for any statements ,in such publication, unless the same were both false and malicious.</p> <p>13. In such cases of privileged publication as are described in the preceding head-note, although the alleged libelous matter can not be shown to be true by the publisher, yet if there was reasonable gx-ound for him to suppose it to be tme, and it was published by him in good faith under an honest belief that it was true in statements of fact and in comment thereon, and was published with motives for the public good, without any prxvate personal malice toward the plaintiff, the publisher is not liable to damages therefor.</p>

<p>Appeal from the Circuit Court for Hernando county.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Alachua county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Appeal from 'the Circuit Court for Lafayette-county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Citrus county.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Escambia county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Writ of Error to tlie Circuit Court for Hillsborough county.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Suwannee •county.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Dade county.</p> <p>.The facts are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Hernando county.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the Circuit Court for St. Johns, county.</p>

<p>1. From the copy of supersedeas bond found in the transcript it appeared that plaintiff in error filed, within thirty days from the rendition of the judgment at law, a bond with the requisite sureties, conditioned as required by statute and approved by the Clerk of the Circuit Court on the day of its filing. On motion to dismiss, a copy of the bond, with no approval thereon, .under the certificate of the clerk that it was a true copy of the ■original, was filed, but the affidavit of the clerk, to the effect that he did approve the bond on the date it was filed, as shown by the transcript, was produced: Held, On this showing that the bond was approved by the clerk on the day of its filing..</p> <p>3. The statute authorizes a Clerk of the Circuit Court to approve bonds, but it does not require him to swear the sureties as to the value of their property. He should require a bond with good sureties, and the approval of it without a justification of sureties when they are insolvent may render him liable, but the mere fact of the absence of the justification of the sureties is no ground for vacating a supersedeas.</p> <p>3. The supersedeas bond provided by section 1272 Revised Statutes should be sufficient in amount to protect the adverse party in the event his judgment is affirmed; and where a bond, sufficient in amount to cover the judgment, interest and costs when executed, appears to be insufficient in such amount when a motion is made in the appellate court to dismiss on account of its insufficiency, an additional bond will be required. Super.sedeas to be vacated unless an additional bond in the sum of .three hundred and fifty dollars be filed with the clerk of this •court within thirty days.</p>

STATEMENT. Appellants sued appellee in an action of assumpsiton a note for $550, payable to the order [of Mary E„ Mickler.

<p>1. The validity of an assignment for the benefit of creditors, may be tested in garnishment proceedings against the assignee.</p> <p>2. The act of 1880 (Chapter 8891), regulating assignments for the benefit of creditors did not violate any constitutional provision.</p> <p>3. A clause excepting such property as is exempt by law from forced sale in a deed of assignment of all the assignor’s property for the benefit of his creditors, does not render the instrument void for want of sufficient identification and description of the ¡property as being an attempt to convey an uncertain and undefined part only of a larger quantity or mass of property, nor does such clause per se make the assignment fraudulent as to creditors.</p> <p>4. A deed of assignment purported to convey all of the assignor’s property, real, personal and mixed, except such as was exempt by law from forced sale, and at the tirne of its execution the assignor delivered all his property, being personal, to the assignee, and then declared his intention to claim his exemp, tions out of the property assigned; subsequently the assigneedeeming it to be to the best interest of all concerned, sold all of the assigned property, and paid the assignor a sum of money equal to the value of property exempt to him by law: Held, That the deed of assignment itself not providing for the payment of the exemptions out of the proceeds of the assigned property, and no fraud or collusion as to the execution of the instrument being shown, the subsequent allowance of the exemptions out of the sale of the assigned property, did not render the deed of assignment fraudulent as to creditors. Whether the assignor was entitled to the money under the circumstances, or that the assignee should account to the creditors for the same, is not decided, as the question is not involved in this case.</p> <p>3. A provision in a deed of assignment conveying property to an assignee, that he take and hold the property, other than such as is exempt by law from forced sale, and dispose of the same so as to realize therefrom the greatest amount of money possible, and to the best interest of all concerned, does not avoid the deed on the ground that it vests in the assignee discretionary power to sell the property on a credit,</p> <p>fi. The generality of the description of personal property in a vol untary deed of assignment for the benefit of creditors will be- ' sufficient when, by the aid of parol evidence, a definite application of the terms may be made.</p> <p>7. By the terms of a voluntary deed of assignment the assignor assigned, set over, granted, bargained and sold to an assignee named all the property, real, personal and mixed, of the assignor, except such as was exempt by law from forced sale, and at the time of the execution and delivery of the deed all of the assignor’s property, being personal, was delivered into the possession of the assignee: Held, That the deed of assignment was not vuid on account of an insufficient description of the property assigned.</p>

Writ of Error to the Circuit Court for Escambia county. STATEMENT.