Volume 40 — Florida Reports

Statement. On November 23, 1893, appellees filed their bill of complaint against appellant in the Circuit Court of Polk County, alleging that appellees, complainants therein, were the owners in fee simple of forty acres of land therein described. as being within the corporate limits of the town of.

Writ of Error in Circuit Court for Levy County. Statement. The defendant in error recovered judgment against plaintiff in error for $5,000 in the Circuit Court of Levy county on November 28, 1894, from which this writ of error was taken. The declaration, hied February 22, 1894, claimed damages for personal injuries sustained by plaintiff March 1, 1893, upon defendant’s railroad at Cedar Keys.

<p>Appellate Practice — Constructive Service on Defendants in Error by Recording Writ of Error — Chapter 4589, Laws' of 1897, Constitutionally Upheld and Construed — Mandamus Against City Council' — Writ of Error Must Be Sued Out in Names of All Joint — Judgment Défendants — Original Writs of Error Must Be Returned to Appellate Court.</p> <p>1. Chapter 4589 laws, approved May 8th, 1897, entitled: “An act to abrogate the writ of scire facias ad aMdiendwm errores in appellate proceedings to the Supreme Court, and to provide a substitute therefor in civil causes,” held to be not obnoxious to that provision of the constitutions of the United States and of the State of Florida that forbids the deprivation of property without due i rocess of law. Our Legislature has the power, not only to regulate and prescribe the procedure to obtain in our several courts, respectively, but also to regulate and prescribe the procedure by which causes tried in the courts of first instance shall be transferred for review to other tribunals clothed by the constitution with revisory powers; and when, in so doing, it provides that the issuance and record of a writ of error in the court of first instance shall have the effect of transferring the cause and the litigants therein to the jurisdiction of the revising court for re-examination, it has prescribed that “due process of law” contemplated by said constitutions. A writ of error proceeding is not such a new and original suit as to require the same strictness and rigidity in the service upon the defendant therein of notice of its institution, as is required at the institution of á new and original action in a court of first instance, but is rather a continuation of an original suit; and a statute providing for constructive notice only of its institution and pendency does not violate that provision of the organic law that prohibits the deprivation of property without due process of law. (Mr. Justice Carter dissenting.)</p> <p>2. Nothing 'but a clear violation of the constitution will justify the courts in overruling the legislative will; and where there is a reasonable doubt as to the constitutionality of an act it must be resolved in favor of the act, and it must be upheld.</p> <p>3. A mandamus against a city council is virtually a proceeding against the corporation, and the judgment therein is obligatory on the members of the board of councilmen in office at the time of its rendition, regardless of mutations made, pending the proceedings, in the personnel of those composing such representative council.</p> <p>4. Writs of error should in all cases give the individual names of all parties plaintiff and defendant m error in order that the appellate court may know by the record who the parties are be-tore it. A writ of error issued in the name of “J- A. et al.” is nothing more than a writ issued in the name of “J- A.” alone; and where the judgment thus sought to be reviewed i$ a joint one against “J A.” and other co-judgment defendants who are not otherwise named or designated in the writ of error than by the use therein of the abbreviation “et al.,” such writ is fatally defective for the want of necessary parties plaintiff in error. The settled rule being that all parties defendant to a judgment rendered against them jointly must be made parties to a writ of error instituted for its review.</p> <p>3. A writ of error, amended by bringing into it new parties plaintiff in error, is, as to such new parties, a new writ, issued, at the time of such amendment, for the first time- And this court, according to its established rule, will not permit such amendments to be made after the time limited for suing out writs of error- has expired.</p> <p><5. The provision in Chapter 4329, laws of 1-897, requiring the writ of error to he recorded in the minute-hoolc of the Cvremt Court, is designed as a substitute for the service upon the defendant in error of the abrogated writ of scire facias ad audienclum errores, and serves the purpose of notice to the defendant in error that he and the record of his case have by such writ been removed for review to the appellate court- It is jurisdictional, and must in every ease he strictly complied with. The statute does not, however, preclude waiver of notice and voluntary appearance in the appellate court.</p> <p>7. All original writs of error should be returned to a/nd filed in the appellate court with the record in the cause; or, at latest, by the return day named in the writ; and, in view of the provisions of Chapter 4329, laws of 1897, it should in every case have endorsed upon it when returned a certificate of the Cle-V of the Circuit Court showing the fact that it has been recorded in the minute-hook of the Circuit Court, and the date of such record and the page of the book where recorded; and the transcript of the record should also contain a certified copy of such record of the writ of error, certified by the Clerk of the Circuit Court in the same manner that he authenticates any transcript of any other document of record in his office, having such copy to show also the date of its record in Ms minute-hook.</p>

On July 9, 1894, the appellant in his own right and on behalf of all other tax-payers of the city of Tampa, filed his bill in equity against appellees, in the Circuit Court of Hillsborough County.

<p>Eminent Domain — Assailing Award of Viewers — Bill of Exceptions Necessary to Exhibit Matters i/n> pais.</p> <p>1. Sections 1544, 1645,1546, 0.547, 1548, 1549,11650 and 1554 of the Revised Statutes, providing for condemnation of private property for railway right of way purposes, where there has been no demand for a'jury trial within the time limited for making'such demand, do not contemplate or require notice to the land owner of the application to the Circuit Judge for a formal judgment of confirmation of an award of viewers made in compliance with the provisions of those sections. Where an award has been made by such viewers and the land owner permits the time to elapse within which he can annul it, as of course, by simply demanding a jury trial, without making such demand, the law contemplates that he thereby acquiesces in the propriety and sufficiency of the award made by the viewers, and is satisfied therewith, and it becomes unnecessary then to notify him of the subsequent application to the judge for a formal judgment confirming such award. When no demand for a jury trial is made by either of the parties within the time limited therefor after the viewers make their award, final judgment of confirmation of such award follows as of course and may be entered by the judge in vacation.</p> <p>2. The only method, within the contemplation ■ of this statute, by which an award made by viewers can be contested, questioned or annulled is by the simple and most effective mode provided by the statute itself; that is, by either of the parties merely demanding the finding of a jury instead of the award made by the viewers, which demand when made within the time limited therefor, of itself, effectually and as of course discharges the viewers and . annuls all of their proceedings without the intervention of any order from the judge for that purpose. The statute makes no provision for the judge to set aside the award of one set of viewers, because it was influenced by improper motives, and to appoint other and fairer viewers in their stead; but in such a case the simple and easy remedy of merely demanding a jury can be effectively applied by any of the parties interested, without let or hindrance on the part of the court, when it is applied in time. If not applied in the time limited, all parties are presumed to be satisfied, and the formal judgment of confirmation of the award of the viewers follows, as of course, without further ado.</p> <p>3. Affidavits used before the Circuit Judge in a condemnation proceeding, for the purpose of showing that an award made by viewers was influenced by bias or prejudice, if available for any purpose, must be preserved in a bill of exceptions duly authenticated by the judge below; otherwise an appellate court can not recognize or consider them at all on writ of error.</p>

<p>Appellate Practice — Record of Entry of Appeal Indispensable to Give Jurisdiction to Supreme Court Over Parties' — Chapter 4528, Laws of 1897, Construed — Transcript to Contain Certified Copy of Record or Entry of Appeal.</p> <p>L Chapter 4528 laws, approved May 7th, 1897, entitled: “An act abrogating citations on appeals in chancery causes from the Circuit to the Supreme Court, and making the record of entry of such appeals notice in such causes,” abrogates the former practice of giving oral notice of appeals when taken in qpen court, and of the issuance and service on the appellee of a citation in appeals taken in vacation, and makes the record of the entry of appeal in the chancery order hook of the Circuit Cowt the notice, and the only notice, to the appellee of the taking and pendency of the appeal in the Supreme Court, and of the transfer of the cause to this court for re-examination. Such recording of the entry of appeal is jurisdictional, and is absolutely indespensable in all chancery appeals, to give to the appellate court jurisdiction over the parties- The statute does not permit recognition of any substitute for such prescribed record, nor will it permit such record to be dispensed with- The statute, however, does not preclude waivers of notice and voluntary appearances in the appellate court.</p> <p>2. In order that the appellate court may be informed by the transcript of the record on appeal of the fact that it has jurisdiction over the parties to the appeal, the transcript of the record in every chancery appeal should contain a certified copy of the recorded entry of appeal taken from the chancery order book, with a certificate of the Clerk of the Circuit Court showing that it is a copy transcribed from the record made of the entry of appeal in the chancery order book, and giving the date of its record and the page of the book where recorded.</p>

<p>Under the laws of this State the will of an unmarried woman, executed in 1884, was not ipso fmto revoked by her subsequent marriage prior to April 5, d®91, but where such will purported to convey all of her property, and was not made in contemplation of a subsequent marriage, such subsequent marriage was under our laws as they then existed, a total alteration of her circumstances, revoking the will-</p>

Statement. Bernard M. Byrne, appellants’ father, died intestate in i860, seized and possessed of about 15,000 acres of land lying in Levy, Marion, Hernando, Volusia and Nassau counties. The appellants were at that time minors, aged respectively nine, four and two years. In 1866, they with their mother Louisa A. Byrne, resided in Washington City, and they have not resided in this State since that time.

<p>1. Under a legislative grant of power to a municipality to make regulations by ordinance to secure the general health of its inhabitants and to prevent and remove nuisances, to regulate the vending of meat, poultry, fish, fruits and vegetables, and to restrain and punish the forestalling and regrating of provisions and to establish and regulate markets, the city may by ordinance establish a public market and confine marketable articles there, provided such ordinance be reasonable, considered with reference to the welfare of the community and not in restraint of trade- The rule announced in City of Jacksonville v. Ledtcith, ©6 Fla. 163, 7 South. Rep. 885, followed.</p> <p>2. An ordinance of the City of Jacksonville, passed under a sufficient legislative grant of power, established a public market and prescribed territorial limits for the same, embracing about - one-sixth of the entire area, and about three-fifths of the population of the entire city, and the testimony tended to sho-w that the public market place was conveniently established within the market limits, considering the territory and facilities of reaching it- Outside of the limits prescribed for the public market other markets were established and no defect is alleged as to such market regulations: Reid, That the ordinance was not unreasonable, considered with reference to the market limits and the population to be served.</p> <p>3. An ordinance appearing on its face to have been passed in pursuance of powers conferred upon the city in reference to establishing and regulating markets, with no inherent indication of its being a revenue act, is presumptively valid, and will not be declared void on the ground that it is for revenue, when the testimony fails to show that the amounts required to be paid for market privileges are in excess of the necessary expenses imposed by the maintenance of the market.</p> <p>i. The portions of the ordinance of the City of Jacksonville passed in August, 1897, objected to as containing a delegation to the board of public works of the powers and duties which are vested exclusively iij the mayor and council, held not to be amenable to such objection.</p>

<p>Appeal from the Circuit Court for Madison County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>The writ of prohibition is not granted ex debito justiciae, but rests in the sound discretion of the court. Its proper function is to confine inferior courts, in the exercise of their powers, within the limits fixed by law, and is never allowed to usurp the office of a writ of error or an appeal- A distinction exists between the assumption of jurisdiction to which the court has no legal claim, and the mere erroneous exercise of a jurisdiction with which it is invested; in the former case prohibition is the proper remedy; but in the latter, the error can not only be corrected by appellate proceeding.</p>

<p>Appeal from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. It is error to appoint a receiver without notice to the parties concerned, unless upon sworn allegations in compliance with Circuit Court Rules Nos- 46 and 47, showing that the injury apprehended will be done if an immediate remedy is not afforded.</p> <p>2. The allegations necessary to excuse notice of application for the appointment of a receiver must be positive; the excuse must not be alleged as a mere conclusion, or upon belief only, but the facts justifying such belief, or establishing such conclusion, must be stated.</p>

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

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

<p>An appeal entered during a term of the Supreme Court to a day in said term is in violation of the statute regulating such appeals, and confers no jurisdiction upon the appellate court to hear the cause.</p>

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

<p>1. A conviction in the municipal court of a city based upon a city ordinance creating an offense against the city is no bar to a State prosecution for the same acts which under a State statute constitute an offense against the State.</p> <p>2. Where an information charges only one offense, but in its several counts charges that offense to have been committed in different ways or by different methods, and there is a general verdict of guilty followed by a general sentence within the limits prescribed for the offense, any error in refusing to quash particular bad counts in the information is harmless, where the information contains good counts which are fully sustained by the evidence.</p> <p>3. A count charging that defendant, in Monroe county on August ■21, 1897, “unlawfully and feloniously did set up and promote a certain lottery, which said lottery was then and there for money, and which said lottery is commonly known as ‘bolito,’ a more particular description of which said lottery is to the solicitor aforesaid unknown,” and another in the same language except the words “and promote” are omitted, are good under Section 1, Chapter 4373, Acts of 1895.</p> <p>4. Counts in an information framed under Section 1, Chapter 4373, Acts of 1895, charging that defendant in a specified county, at a specified time, “unlawfully and feloniously did sell to one Jeremiah Cleare a certain lottery ticket,” and ‘“unlawfully and feloniously did sell to Jeremiah Cleare a fractional part of a lottery ticket,” and “unlawfully and feloniously did sell to Jeremiah Cleare a share in a lottery ticket,” are sufficient without designating the particular lottery ticket, or specifying the fractional part or share in the lottery ticket alleged to have been sold.</p> <p>5. -Instructions that are not applicable to any eivdence in the case are properly refused.</p> <p>6. Slips of paper stamped by the seller and sold at five cents each to purchasers who number them with certain numbers selected by such purchaser from a blackboard in possession of the seller, which slips of paper are at a subsequent lottery drawing conducted by the seller if the numbers thereon correspond with others drawn, redeemed by the seller’s paying to the purchaser $4.-50^ are lottery tickets, even though such slips of paper do not purport to entitle the holder to the chance of a prize to be distributed by lot, and even though the seller makes no contract or agreement with or representation to, the purchaser to that effect.</p> <p>7. Under Chapter 4026, Acts of 1891, where the primary punishment imposed by the court consists of a fine, or a fine and costs of prosecution, and in addition a term of imprisonment in the State prison, an additional period of imprisonment' in the State prison for non-payment of .the fine, or of the fine and costs may be imposed; but in all other cases the imprisonment for non-payment of a fine, or a fine and costs, must be by confinement in a county jail.</p>

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

Writ of Error to the Criminal Court of Record for Volusia county. The facts in the case are stated in the opinion of the court.

<p>1. On an indictment for rape it is not necessary for the State to prove emission in order to sustain the charge. Proof of penetration alone is sufficient.</p> <p>a. The court refused to instruct the jury at the request of defendant as follows: If, after a comparison and consideration of all the testimony in the case, there remains upon the mind of any one of your number a reasonable doubt as to the truth of the charge as laid in the indictment, then under your oaths as jurors, you can not convict the defendant: Held, the refusal was not error in view of other charges given on the subject.</p> <p>*. It is not error to refuse an additional charge when the court has already fully and sufficiently charged on the point covered by the additional request-</p> <p>4- The court commits no error in refusing an instruction which implies, and is calculated to impress the jury with the view, that there is no testimony as to a certain phase of the case, when the record shows that in point of fact there was such testimony-</p> <p>5. -An indictment for rape sufficiently alleges the offense to have been committed on a female when the name of the person alleged to have been ravished is that of a female, and the pronoun “her” is employed in further identification, though there be no direct allegation in terms that the person was a female.</p> <p>*>• The Circuit Courts of this State having jurisdiction of the ■capital offense of rape, has the power under the constitution and laws of this State to impose the penalty for an assault with intent to commit rape when the jury acquits of the higher, but returns a verdict of guilty of the lesser offense.</p> <p>7. The evidence in this case held sufficient to sustain a verdict of guilty of assault with intent to commit rape-</p>

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

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

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

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

<p>Criminal Law — Quashing Indictment — Evidence of Co-Conspirators — Husband and Wife as Witnesses — Confidential Communications Between Can Not be Deposed by Either — Letters Between Are Inherently Confidential and Protected by the Rule Wherever Found — Sustaining Character of Witness, When and How Allowed — Objections to Evidence Not Waived by Failure to Reiterate Them to Like Subsequent Evidence.</p> <p>1- For the purpose of quashing an indictment formally returned by a properly qualified grand jury, courts will never inquire into the character of the evidence that influenced its finding and return.</p> <p>*• Every act and declaration of each member of a conspiracy to commit crime, in pursuance of the original concerted plan, and with reference to the common object, done or made'during the pendency of the criminal enterprise, is, in contemplation of law, the act and declaration of them all, and is, there- . fore, original evidence against each of them.</p> <p>3. Chapter 4039 laws, approved June 4th, 1891, and Section 2863 Revised Statutes, that, combined, removes the incompetency as mtnesses of husband and wife because of the interest of either in both civil and criminal cases, do not have the effect of empowering either of them, when they become witnesses, to give illegal or incompetent testimony by detailing or exposing those confidential transactions or communications that have passed between them in consequence of their marriage relation, that the law privileges and shields from exposure by either of the parties to the communication; and this, to preserve a wholesome public policy. The matter that the law prohibits either the husband or wife from testifying to as witnesses includes any information obtained by either during the marriage and by reason of its existence. It should not be confined to mere statements by one to the other, but embraces all knowledge upon the part of either obtained by reason of the ma/rriage relation, and which, but for the confidence growing out of it, would not have been known. Where the incompetency, as witnesses, of husband and wife on the ground of interest has been removed by statute, as is the case here, either or them may testify, for. or against the other, to any fact the knowledge of which was acquired by them independently of their ■marriage relation, in any manner not involving the confidence groicing out of that relation.</p> <p>f. Letters from the husband to the wife, or from the latter to the former, are inherently privileged from the very character of the communication itself, and such privilege protects them from exposure in evidence wheresoever and in whosoever hands they may be.</p> <p>5. Whenever the character of a witness for truth is attacked in any way, either by showing contradictory statements of the matter of his evidence out of court, different from that sworn to, or - by cross-examination, or by general evidence of want of character for truth, or that he has been convicted of crime, or engaged in some act affecting his credibility, like suborniilg or . . attempting to suborn a witness, or suppress testimony in the , case on trial, it is competent for the party calling him to give general evidence in support of the good character of the witness. In determining the propriety of the admission of evidence to sustain the character of a witness, the distinction should be observed between an attack upon the character of the witness, as such, for credibility, and an attack upon the character of the testimony that he gives for belief.</p> <p>i>. When the character of a witness is gone into the only proper object of inquiry is as to his reputation for truth and veracity. Neither his general character, nor particular phases or traits of character, can be gone into, but the inquiry must be confined to his reputation of character for truth and veracity.</p> <p>7. When an objection to the introduction of incompetent evidence has been once properly taken, and overruled by the court, it is not waived although the same evidence may have been subsequently admitted, through other witnesses, without objection.</p> <p>(Taylor, C- J., dissents from- the conclusion reached by the majority of the court to reverse the judgment, on the ground that the error found, under the facts and circumstances in proof, was harmless.)</p>

Writ of Error to the Circuit Court for Hamilton county. Statement. At a special term of the Circuit Court of Hamilton county, held in October, 1896, paintiff in error was indicted for the murder of one Lilly Gantling, alleged to have been committed August 1, 1896. The indictment contained two counts: the first charging that the murder was effected with a razor; the second that it was committed in a manner and by means unknown to the grand jury.

Writ of Error to the Circuit Court for Hillsborough county. The facts in the case are stated in the opinion of the court.

<p>3. In an indictment for murder it is essentially necessary to set forth particularly the manner of the death, and the means by which it was effected, but in stating the facts which constitute the offense no technical terms are required, and an averment of the manner and means by which the deceased came to his weath in concise and ordinary language and in such a way as to enable a person of common understanding to know what was intended, is sufficient-</p> <p>2. Under section ¡2893 Revised Statutes, it is immaterial that an indictment for murder concludes against the form of the '“statutes” where it should properly conclude against the form of the “statute.”'</p> <p>3. Where counsel make improper and prejudicial remarks or arguments during the trial of a case, the opposite party should present,his objections thereto and secure a ruling from the presiding judge thereon, and, if the ruling is adverse, except to it, in order to secure a review of such ruling by this court-This court can not consider an exception to a remark of counsel, but only an exception to some ruling of the trial court with reference thereto.</p>

<p>1. A decree which disposes pf every questipn involved in a chancery case, leaving nothing open for future decision, and contemplating no further action in the cause other than to enforce the decree, is final.</p> <p>2. The judgment and mandate of an appellate court acts directly upon the decree of an inferior court appealed from, without the intervention of any action on the part of the inferior court.</p> <p>3. The maxim id certum est quod eertpm reddi potest will sustain a decree in equity which refers to record data in the suit for determining what is otherwise uncertain on the face of the decree.</p> <p>4. Where the official capacity of a party defendant to a bill in equity had ceased before the entry of a decree in his name, and subsequent to the entry of such decree, the court upon application of complainant made the successor of such former official a party defendant in the place of such former official, the defect of parties at the entry of such decree can not be made the basis for a bill of review at the instance of the complainant.</p> <p>5. Circuit Courts have no jurisdiction of bills to review decrees entered by them in obedience to the mandate of an appellate court, because of errors of law or fact alleged to have been committed by such appellate court in rendering its judgment, and the attempted exercise of such jurisdiction will be restrained by prohibition.</p> <p>6. Where this court upon an appeal held that a Circuit Court should not entertain jurisdiction of a bill to review for newly discovered matters a decree entered by it in pursuance of this court’s mandate on a former appeal, without permission from this court granted one of the parties to apply to the Circuit Court for leave to file such a bill, and thereafter the Circuit Court granted leave to one of the parties to file a bill to review the entire decree for newly discovered matters, although the permission given by this court embraced a review of a part only of the decree, this court will under its power to issue all writs “necessary or proper to the complete exercise” of its jurisdiction, grant a writ of prohibition to restrain the proceedings in so far as they seek to review those features of the decree not embraced in the permission granted.</p> <p>7. Where the want or excess of jurisdiction relates to the subject-matter and is apparent upon the face of the proceedings of an inferior court* sought to be prohibited, and that court has made some order in the exercise of such unauthorized jurisdiction, prohibition will lie, even though no plea to the jurisdiction has been tendered to and ruled upon by the inferior court.</p> <p>8. Prohibition lies to restrain an excess of jurisdiction as well as to prevent a court from proceeding in a case where it has no jurisdiction whatever.</p> <p>9. Where a party applies for a prohibition and asks the court to prohibit another court more than he ought to ask for, yet if part of his request is well founded, the court ought to mould the prohibition and limit it to so much of his request as is proper to be granted.</p>

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

Writ of Error to the Circuit Court for Hillsborough county. Statement. Robert Mugge and over forty others filed a petition under the statute in May, 1897, alleging that they were the owners of real estate in the city of Tampa subject to taxation, and that the' city had assessed and levied upon their real estate for the year 1896 municipal taxes, payment of which had been refused because of the illegality of the assessment.

In the Supreme Court of Florida, Tune Term, A. D. 1898. Writ of Error to the Circuit Court for Escambia County. Statement.

<p>Appeal from the Circuit Court for Hernando County.</p> <p> -Statement. </p> <p>The amended bill, filed by appellees W. f. „ tack-pole, James Connor, Rosanna Connor, Eugene Connor and wife Johanna, and W. J. Connor, against W. S. Hancock, John J. Hale, John M. Taylor and C. C. Keathley, and George T. Ross, alleges that complainants were on and before the 1st day of June, 1890, seized in fee and possessed by the W. 1-2 of S. W. 1-4 of,Sec. 12 Tp. 22 S., R. 20 E., situated in Hernando county, the said W. P. Stackpole being the owner of an undivided half interest in said land and the other complainants being the owners of the other undivided interest as heirs at law of one John Connor, deceased. The object of the bill is to cancel certain quit-claim conveyances made by complainants to defendant W. S. Hancock, a quitclaim deed from the latter to the defendants, Hale, Taylor and Keathley, and certain tax deeds acquired and held by the defendants. The grounds upon which the cancellations are sought are stated by the bill as follows: “Your orators and oratrixes being so seized and possessed of said lands were approached by the defendant Willliam S. Hancock, on or about the 1st day of June, 1890, and solicited by him to sell their respective interests therein, which your orators and oratrixes were willing to do provided that the sum offered by the said Hancock was as much as said lands were then worth in'the market, but not knowing the then market value of said lands they relied entirely upon the representations of him, the said Hancock, for a truthful statement of the market value thereof; that thereupon the said Hancock represented and asserted to them that said lands were utterly valueless except for the small amount of pine' timber standing thereon; that there was an English syndicate which intended to erect a mill in the neighborhood of said lands but would not do so unless it could purchase at least one thousand acres; that he, Hancock, owned some adjacent lands and by obtaining the lands of your orators and oratrixes he could make up the one thousand acres and thus effect a sale of his own lands to the said syndicate; that there were no deposits of phosphates — then recently discovered in Florida — or other valuable deposits of minerals on said lands, and that save for the timber aforesaid would command no price and was utterly unsalable in the market; that said lands had been sold again and again for taxes, and tax deeds unnumbered clouded their title; and that the sums aggregating $1,000, which he then offered them was really more than said land was then worth or would sell for in the market. That upon these representations of said Hancock on which your orators and oratrixes relied as being truthful and free from deception, and by which alone they were induced to sell said lands to him, your orators and oratrixes did, for the aggregate sum of one thousand dollars so offered as aforesaid, execute to the said Hancock quit-claim deeds to the said lands, vis: your- orator William P. Stackpole on the 2nd day of June, A. D. 1890, executed a quit-claim deed to said Hancock for his .interest in said lands for the sum of two hundred dollars, and in order to obtain the signature to said deeds of your orator for said nominal consideration, the said Hancock first induced your orator to drink freely with him, Hancock, of spirituous liquors, and your said orator thereby became intoxicated and in that condition was made to execute said deed; that said deed was afterwards recorded in book 6 page 107 in the records of the clerk of the Circuit Court for Hernando county, Florida.</p> <p>That on the 26th day of September, A. D. 1890, your orators and oratrixes, James Connor, Rosanna Connor, Eugene Connor and Johanna Connor, wife of the said Eugene Connor, executed their quit-claim deed for their interest in said lands to said Hancock for the consideration of six hundred dollars, said deed being recorded in said clerk’s office in book 6 on page 108. That your orator W. J. Connor executed to said defendant, Hancock, a quit-claim for his interest in said lands on the 5th day of December, A. D. 1890, for the.sum of two hundred dollars which said deed is recorded in said clerk’s office in book 6 on page 282.” The bill further alleges that complainants afterwards discovered and so allege that all of said representations and assurances made by Hancock, were utterly false in every particular and were made by him solely to circumvent, cheat, defraud and swindle complainants and obtain from them the aforesaid deeds. That in truth and fact no such English syndicate existed and the lands were not solely valuable for the pine timber standing thereon, but there did exist large and valuable deposits of phosphate on said lands and said deposits rendered them exceedingly valuable, which fact was well known to Hancock and his co-defendants and conspirators as hereinafter charged, but was entirely unknown to complainants and studiousfy concealed from them by said Hancock; that said lands at the time of the execution of said deeds were worth at least the sum of $30,000. It further alleged that the defendants, well knowing the great value of the complainants’ land, and their ignorance thereof by reason of their residence in a distant State, conspired and confederated together to oppress, injure and defraud said complainants out of said land, and for this purpose said defendants deputed and sent Hancock as agent to complainants to obtain by false and fraudulent statements and representations aforesaid the said deeds from them; that after Hancock had fraudulently thus obtained from complainants said quit-claim deeds, he, on the, to-wit: 20th day of February, 1891, -executed to his said co-conspirators a quit-claim deed for an undivided three-fourths interest in said land and said deed was recorded in the office of the clerk of the Circuit Court of Hernando county in book 6, page 388.</p> <p>In reference to tax deeds it is alleged that complainant Stackpole and one John Connor, deceased, and whose heirs are ¡co-complainants in this suit,' purchased the land in controversy in October, 1882, and obtained a deed therefor from the board of education of the State of Florida, and that said purchasers were the sole owners of said land during the whole of the years 1888 and 1889, and that said land was not returned for taxation for said years by either of the then owners, or by any authorized agent for them; that said land was wild forest land and not in the actual possession of anyone during said years 1888 and 1889, nor at any time from that date to the filing of this bill. That the assessor of revenue for Hernando county for the purposes of taxation, assessed for each of said years said land as the property of W. L. Conrior, a person unknown to complainants; that said land was placed on page 48 of assessment roll of 1898, and in valuation column the figures 200, in the column for total taxes for State purposes the figures 80, and in the column for total taxes for county purposes the figures 200 occur, with no marks or ■■ other writings to show for what these figures stand; that said land was placed on page 42 of assessment roll of 1889 .and in its valuation column the figures 160, in the column for total taxes for State purposes the figures 90, and in the column for total taxes for county purposes the figures 136 occur, but with no $ mark or other writing to show what these figures mean, and that under such illegal and void assessments the lands were sold for taxes to certain parties from whom defendants obtained quit-claim deeds. The bill asks that said tax deeds be cancelled and surrendered.</p> <p>It was also alleged that defendant John M. Taylor on the 23rd of March, 1892, executed a mortgage on his one-fourth interest in said dand to the defendant Geo. T. Ross to secure the sum of $3,500, which said mortgage was recorded in book 8 page 115 in the Hernando county records April 13th, 1892.</p> <p>The prayer of the bill is that the quit-claim deeds from complainants to Hancock, and the quit-claim deed from him to defendants Hale, Taylor and Keathley, be cancelled and surrendered upon the payment by complainants of the one thousand dollars and interest thereon received by them from Hancock, which is tendered.</p> <p>Keathley died and the suit was revived against his wife, -heirs at law and legal representative. It appears that the wife was of unsound mind and she is represented by guardian. The minor children are represented by by guardian.</p> <p>Demurrers were filed and overruled but as no argument is made on this ruling no notice need be taken of it.</p> <p>Hancock filed a separate answer. In his answer Hancock admits the purchase by him of the land in question at the times and for the several sums set forth in the bill, but avers that the sum of $800, paid to James, Rosanna, Eugene and William Connor for their respective shares was the price fixed by them without any suggestion or representations whatever from him as to the value of the land. He further avers that at the time he began negotiations with complainants for the purchase of the land he had never examined it with the view of ascertaining whether it contained deposits of phosphate or other minerals, and that complainant Stackpole and one John Connor under whom the other complainants derive title were in actual possession of the land and resided thereon for about six months and had every opportunity to examine the same and ascertain what deposits, if any, were contained therein. All the allegations of the bill in reference to the false and fraudulent statements and misrepresentations as to> the value of the land and that it had no phosphate deposits, are denied in toto and in detail, and defendant avers that no such statements and misrepresentations were made by him. In reference to the tax deeds to the land it is averred that defendant, together with others had purchased two tax deeds as herein more fully shown and that he had said tax deeds in his possession at the time he was negotiating with complainants and exhibited the same to them. The answer also denies the allegations of the bill ,in reference to inducing complainant, Stackpole, to drink intoxicating liquors while defendant was negotiating with him in regard to the purchase of his interest in the land. The answer further avers as follows: “This defendant further answering denies that in any way whatever, did he make any false or fraudulent representations to the complainants or either of them, concerning the land in question, pr that any false, deceitful or fraudulent representation was made by him, either in his individual capacity or as agent of his co-defendants, but saj^s that he, together with the defendants John M. Taylor, John J. Hale and C. C. Keathley, now deceased, but whose heirs and representatives are parties defendant hereto, concluded to negotiate for the purchase of said land, and that this defendant in negotiating and concluding said purchase, -acted honestly, and without any endeavor to cheat, defraud or otherwise injure complainants, or either of them, and that after agreeing upon a price, the complainants executed deeds for their respective interests, and the defendant paid them the purchase price so agreed upon, and took said deeds as of right he could do. This defendant further answering says that immediatelj1- upon the execution and delivery of said deeds by complainants he, with the said Hale, Taylor and Keathley took actual possession of the land in controversy and had erected and constructed a small house upon the same, which was subsequently destroyed by fire; that from the time of so entering into possession of said land, they have been in the continued occupation thereof, having had the same surveyed, worked upon and a portion thereof enclosed with a good substantial fence. This defendant further answering says that prior to the execution and delivery of the deeds from the complainants to himself, he, with said Hale, Keathley and Taylor, had obtained a quit-claim deed to said land from Chauncey S. Wilson and William E. Law who held a tax deed for the same, and had at the same time obtained from the said Wilson and Law a transfer of a tax certificate which they held for said land, the same having been sold for the non-payment of taxes for the years 1888 and 1889, all of which will more fully appear by reference to said certificate and deeds, copies of which have been filed with a separate answer of this defendant to the original bill herein, said copies being marked respectively A, B, C, D, and E, and prayed to be taken as a part of this answer. And this defendant avers that the complainants, nor either of them, were at the time of the institution of this suit, or at any time since then in the possession of said land or any portion thereof, nor is said land wild forest land and unoccupied, as is alleged in the complainants’ said bill of complaint.”</p> <p>. It is also alleged that the assessment and sale of said land for non-payment of taxes for the years 1888 and 1889, were so far as defendant knew, perfectly legal and as to such alleged illegality strict proof was required. There is also contained in the answer a demurrer to the bill as not making a case entitling complainants to any relief.</p> <p>The joint answer of the other defendants, except Ross, after the usual reservation of benefit on account •of uncertainties and imperfections in the bill, admits the purchase by -W. S. Hancock, their co-defendant, from complainants of the land in question for the price alleged, and at the time stated therein, but they aver that they did not know of their own knowledge what, if any, representations were made by said Hancock to complainants in reference to said land, and they emphatically deny that if any fraud or deceit was practiced by Hancock or that if any false, deceitful or fraudulent representations were made by him to the complainants or either of them to induce them to sell said land, the same were made (with) their authority, knowledge, consent or approval, and they according to the best of their several and respective knowledge, information and belief, deny that Hancock made any false or fraudulent representations to complainants in reference to the deposits of phosphate or other minerals upon said land, or that Hancock represented and asserted to complainants that the said lands were valueless save for the small amount of timber thereon, and that his object in purchasing said land was for the purpose of selling it together with lands of his own to an English syndicate. They also deny upon information that Stackpole was intoxicated when he executed his deed to Hancock.</p> <p>In reference to the allegation in the bill about tax deeds these defendants aver that they did not know of their own knowledge what representations, if any, were made by Hancock, but they say that in fact and in truth said land had been twice sold for the nonpayment of State and county taxes levied and assessed thereon for the years 1888 and 1889, as would more fully appear by the exhibits attached to the answer of Hancock. Further answering defendants say in reference to the charge in the bill of the voidness of the assessment and sale of the land and of the tax deeds issued in pursuance thereof and purchased by Hancock, Hale, Taylor and Keathley, that they are uninformed save from the allegations in the amended bill and for aught they know said assesments and sale may be perfectly good. It is denied that the land is wild forest land and unoccupied at the time of the institution of the suit or the filing of the amended bill, but on the contrary they aver that immediately after the execution and delivery of the deeds by complainants to Hancock, he, Hale, Taylor and Keathley went into the actual possession of said land and have so remained up to the time of the filing of this answer. The answers reserve the question of the sufficiency of the bill to entitle complainants to any relief as matter of law, and conclude as follows: “These defendants deny all and all manner of unlawful combination and confederacy wherewith they are by said amended bill charged without this that there is any other matter, cause or thing in the said complainants’ said bill of complaint contained material or necessary for these defendants to make answer unto and not herein and hereby well and sufficiently answered, traversed, confessed and avoided or denied, is true to the best knowledge and belief of these defendants, all which matters and things these defendants are ready and willing to aver, maintain and prove as this honorable court shall direct.”</p> <p>G. T. Ross filed a plea alleging that he loaned the sum of $3,500 to defendant John M. Taylor and that as security for said loan, he took from him, Taylor, a mortgage on his interest in said land and that said loan was made and mortgage taken in good faith and without any knowledge on his part that the title of Taylor to said land was defective, or that the same had been obtained by fraud or deceit if such was the case as alleged in the bill.</p> <p>Replications were filed to the answers and the plea of Ross was set down for argument.</p> <p>Testimony was taken covering the entire case including the matters embraced in said plea, and on final hearing the court decreed that the equities of the case as to W. P. Stackpole were with him, and as to the other complainants the equities were with defendants. The quit-claim deed from complainant Stackpole to W. S. Hancock, and the tax title to the land in question were ordered to be cancelled upon said complainant paying to defendants the moneys which might thereafter be adjudged to be due from him for taxes, improvements made upon and incumbrances discharged from the land, and a reference was made to a master to state an account of what was due for taxes paid and for money expended in improving the property.</p> <p>Appeals were entered by both complainants and defendants as styled in the beginning of this statement from the decrees adverse to them respectively.</p> <p>The other 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 of the Court.</p>

<p>1. Until defendant files his answer, or a decree pro oonfesso is regularly entered against him in a partition suit, it is error for the court to decree partition between the parties-</p> <p>2. A decree pro oonfesso entered by the Clerk of the Circuit Court on a day other than rule day, not entered in pursuance of default in pleading committed on that day, nor in pursuance of an order of the judge, is unauthorized.</p>

<p>Appellate Practice — Dismissal for failure to file transcript of record.</p> <p>When a plaintiff in error fails to file the transcript of record in the appellate court within the time prescribed by law, and, prior to any application to the court for an extension of the time for filing such transcript, the defendant in error moves for a dismissal because of such failure, such motion will be gránted where no good cause is shown for such failure.</p>

<p>1. Under article XII, of the Constitution, county taxes for the - support of free public schools therein must be specifically levied for that purpose, differentiated from a levy for other county purposes.</p> <p>2. The eighth section of Article XII, of the Constitution, providing that each county shall be required to assess and collect annually for the support of public free schools therein a tax of not less than three mills nor more than five mills on the dollar of all taxable property in the same, contains a limitation upon the power of the legislature to authorize a levy for such purpose in excess of five mills, and this amount cannot be exceeded in any form or guise of taxation for the support and maintenance of the public schools of a county.</p> <p>3. Chapter 4603, laws of 1897, purporting to authorize the county of Duval to issue bonds for the purpose of purchasing school sites, and constructing, repairing and furnishing buildings for the use of the public schools in said county, declared to be in violation of the limitations contained in Article XII, of the Constitution, and therefore void.</p>

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

<p>Mandamus does not lie to compel the sheriff to sell real estate levied upon by him, under an execution issued upon an ordinary money judgment, as in such case the relator has other adequate remedies at law against the sheriff for his neglect of duty.</p>

<p>1. A subsequent appeal entered by the same party from the same decree, while his prior appeal is still pending and effective, is irregular, and will be dismissed-</p> <p>2. Where an appellant neglects to file transcript of the record, and shows no good cause for his failure so to do, his appeal will be dismissed.</p>

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

In the Supreme Court of Florida, June Term, A. D. 1898. Appeal from the Circuit Court for Alachua County. The facts in the case are stated in the opinion of the Court.

<p>Appellate Practice — Affirmance on request of Plaintiff in Error. Where a Plaintiff in Error files in the appellate court a written confession that there is no error in the judgment from which his Writ of Error is taken, including therein a request that said judgment may be affirmed, the appellate court will grant such request and affirm the judgment.</p>

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

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

<p>Municipal Law — Taxing Privileges — Making Two Taxable Privileges out of one — Liquor License — Authority to Impose Taxes Construed Strictly — Doubts, in Construction of Delegated Municipal Powers, Resolved Against Municipality.</p> <p>1. The municipality of Jacksonville has no power, either by special charter or by any general law, to segregate the several elements of right that accrue to its citizens under one taxable privilege, as recognized, defined and declared by the general revenue laws of the State, and to impose, by ordinance, a license tax upon such segregated element of the one privilege as a separate and distinct privilege of its own creation.</p> <p>3. The general revenue laws of the State, in imposing license taxes upon dealers in liquors, group the various intoxicants, therein designated as spirituous, vinous and malt liquors, into one general class of merchandise, and provide that the dealer in any one or all of such several intoxicants, shall be subject to the one license tax therein imposed, and declare in express terms that dealers paying the same and receiving a license therefor shall be authorized to sell spirituous vinous or malt liquors, or arvg such liquors- The city of Jacksonville, under the special authority of its charter to “license and tax privileges,” and under the power conferred upon municipalities generally by the general revenue laws of the State, to “impose taxes on any business, profession or occupation not mentioned,” in said general revenue acts, has no authority to enact an ordinance that imposes one license lax that, when paid gives to the licensee the right to sell spirituous and vinous liquors, either at wholesale or retail, and malt liquros at retail-only, and that imposes upon the wholesale dealer in malt liquor alone another separate and distinct ícense tax. The licensed liquor dealer, whether at wholesale or retail, has the right, as elements of a single taxable privilege, to deal in, at wholesale or retail, as the case may be, all three of the general classes of liquors known as spirituous, vinous and malt, and such' an ordinance as the one mentioned is unauthorized and void wherein it .undertakes to except wholesale dealers in malt liquors from the license it grants to wJmlesa-le dealers in spirituous and vinous liquors, and wherein it undertakes to impose a separate license tax upon such wholesale dealers in malt- liquors alone-</p> <p>3. Statutes conferring authority to impose taxes must be construed strictly, and delegated corporate powers to municipalities, particularly grants of power that are out of the usual range, and that may result in public burdens, or which, in their exercise touch the right to liberty or property, or any common law right of the citizen, must likewise be strictly construed; and when in such construction there is any ambiguity or doubt as to the extent of the power, it is to be determined in favor of the State or general public, and against the State’s grantee-</p>

Statement. On August 26, 1893, appellees filed their bill of complaint against appellants in the Circuit Court of Bradford county, alleging that on March 7, 1892, Mary G. Witkovski purchased a certain parcel of land in said county at a sheriff’s sale under execution issued upon a judgment recovered by her against Milley Day on November 19, 1891; that on June 30, 1892, Mary G. Witkovski conveyed said land to complainant, Bonita E. Jones, who- with her husband entered into and…

<p>Appellate Practice — From Judgements at Law an Appeal Does not Lie; Writ of Error is the only Proper Appellate Procedure in such cases.</p> <p>Since the adoption of the Revised Statutes in 1898, there is no such procedure as an appeal from a judgement <vt law. Such judgements can only be reviewed in the appellate court on Writ of Error; and where in such a case no Writ of Error has ever issued, an attempted appeal therein will be dismissed.</p>

<p>Criminal Law — Homicide—Duty to Retreat — Burden of Proof— Instructions on Form of Verdict — Indictment—Sufficiency of —Rejection of Words in as Surplusage.</p> <p>1. The well-settled rule is that where a party is himself at fault and provokes the difficulty, he can not justify killing his adversary in the affray that he himself has brought about, unless, he in good 'faith withdraws from the combat in such' manner to show his adversary his intention in good faith to desist.</p> <p>2. • An instruction is properly refused that puts the 'burden upon the State in a criminal trial of negativing beyond a reasonable doubt matter that is defensive, and the burden of showing which affirmatively is upon the defendant, and that, too, whether the defendant affirmatively establishes such defensive matter by proof or not.</p> <p>3. Under the provisions of Section 8383, Revised Statutes, requiring the degree of homicide found by the jury from the proofs to be expressed in the verdict, it is proper for the judge to instruct the jury to comply with its provisions as to the form of their verdict in such cases, in the event of conviction, but in such cases it is not necessary to offer the jury any special suggestions as to the form of the verdict in the event of acquittal.</p> <p>4. Words in an indictment, that are not necessary or essential to describe or charge the offense, and that are not descriptive of any matter necessary to be proved, and that may be dispensed with without destroying or materially changing any essential allegation in such indictment, may be rejected as surplusage- Under the provision of Section 8380, Revised Statutes, an indictment for murder that charges an assault with a pistol upon A, with a premeditated design to effect his death, and then alleges the discharge of such pistol with a premeditated design to effect the death of B, and then charges the infliction of the mortal wound upon A, with the premeditated design to effect A’s death, is sufficient to su.stain a conviction.-</p>

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

<p>Appellate Practice — Writs of Error Made Returnable in Violation of Law.</p> <p>A Writ of Error that is issued on a day mWhin a term of the appellate court then pending and that is made returnable to a day within the same term violates the provisions of Section 1270 of the Revised Statutes, and is void; and a cause attempted to be brought thereby to the Supreme Court will be stricken from the dockets and dismissed.</p>

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

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

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

<p>Writ of Error to the Circuit Court for Santa Rosa County.</p> <p>The facts in the case are stated in the opinion of • he Court,</p>

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

<p>Criminal Law — Trespass on Land-Tax Receipts as Evidence of Payment — Proof of Handwriting Not Necessary to Admit Letters Received in Reply — Evidence Erroneously Admitted 'is Plarmless if Fact it Proves is Admitted to be True — Discharging Accused Before Verdict for Want of Evidence — Party .Complaining of Errors Must Make Them Apparent — Claim of Title to Lands Tresspassed Upon, When a Defense.</p> <p>1. While an official tax receipt is strong evidence of the fact of payment of taxes, yet it is not the exclusive method of proving such payment, but such payment may exist as a fact, and may be established orally whether an official receipt be in existence to evidence it or not.</p> <p>a. The rule is that where a letter is addressed to á party at his postoffice address and is sent by mail, and a reply thereto, purporting to be from the party to whom it is sent is received by the sender of the letter in due course of mail, such reply letter is admissible in evidence without proof that it is in the handwriting of, or signed by, the party purporting to have sent it-</p> <p>3. Where evidence is erroneously admitted to prove a fact that is conceded or admitted on the trial to be true, the error in admitting improper evidence to prove such conceded facts is harmless-</p> <p>4. -There is no law or rule, of practice that will permit a trial judge on the motion of the acchsed in a criminal case, to take such case from the jury in the midst of its trial and grant a peremptory discharge of the accused from custody before a verdict is rendered, on the ground that no evidence has been adduced to connect him with the crime.</p> <p>5. It is the duty of a party appealing to an appellate court to make the errors apparent of which he complains; and where in the examination of witnesses on the trial, any of his questions have been excluded on objection, and such questions do not in and of themselves indicate whether the answers thereto will be material or pertinent evidence or not, it is his duty, in order to have the rulings thereon reviewed on appeal, to make an offer at the trial of what he proposes to elicit or prove by such questions, so that both the trial and appellate court can determine whether the proposed evidence is material or not; otherwise he fails to make his alleged error to appear, and the appellate court will so declare.</p> <p>6. In a prosecution for criminal trespass upon land under the provision of Section 2546, Revised Statutes, it is error for the court to charge in effect, '“that if a party trespasses in the face of direct and positive warning from 'the legal owner who is in possession, no adverse claim or color of title will excuse the trespass, or the severance and carrying away of anything from the freehold.” The real issue in such cases is, did the defendant wilfully commit the trespass alleged without any lawful justification or excuse? If, in the commission of the acts complained of, the defendant acts under the bona fide and reasonable belief that he had a lawful right so to. act, under a claim of title to the property, either in himself, or in others from whom he has derived authority, he cannot ¡properly be convicted under this law, whether the true or legal owner of the land was in the legally presumptive possession thereof or not, and whether such owner or his agent expressly forbade the acts or not. When in such a case, the defense of a claim of title it set up, the defendant must show that he not only entered under a bina fide belief in his right to enter, but that he had reasonable grounds for such 'belief; and the bona fides and reasonableness of such belief on the defendants’ part are questions for the jury to decide from all the facts and circumstances of the case. It is error in such a case to instruct the jury that the belief of right to enter on the part of the trespasser, in order to excuse, must be such as would actuate a “prudent” man.</p>

<p>¡I. If a pfLrty desires to avail himself of the omission of the trial court to charge the jury on any point of law in the case, he must ask the court to give the instruction desired, and except to its refusal; otherwise he will not be permitted to assign the omission as error.</p> <p>2. Assignments of error based upon instructions given by the court to the jury, not excepted to in the court below, will not be considered by an appellate court.</p> <p>3. Where the record shows that the court’s written charge was delivered to the jury and filed upon the day of the trial of a case, the fact that the charge purports to bear a previous date is immaterial.</p> <p>4. Where the record shows that the jury was empanelled partly from the regular venire and partly from the names of persons drawn upon a special venire previously ordered in the case, and no objections to empanelling any juror appear to have been made by defendants, a judgment of-conviction upon the verdict of such jury will not be reversed because the record fails to show that the special venire actually issued as ordered, or that was served and returned by the sheriff-</p> <p>5. It is sufficient if it appears by necessary and reasonable implication from record entries that the defendants and the jury were present at all necessary “stages of the trial.”</p> <p>6. In order to hold one guilty of murder in the first degree who is not the actual perpetrator of the crime, he must not only be present when the crime is committed, but he must be aiding, abetting, advising, encouraging or assisting another to commit it, having himself a premeditated design to effect the death of the person killed, or knowing or believing that such other person intends to kill the deceased.</p> <p>7. An erroneous instruction applicable only and confined to the offense of murder in the first degree, is not available to reverse a conviction for murder in the third degree, where all the instructions as to offenses less than murder in the first degree included in the charge are correct, and the erroneous instruction could not have contributed to produce the conviction of such lesser degree.</p> <p>8. Where, construing the charge as a whole, a- verdict is not opposed to, but in accordance therewith, the court should not grant a new trial upon the gro.und that the verdict is contrary to the charge of the court, although isolated paragraphs may not authorize the verdict rendered.</p> <p>9. Ap indictment properly drawn for murder in the first degree charges manslaughter, as well as murder in all its degrees, and in a trial thereupon is involved a question of defendant’s guilt as to every grade of unlawful homicide.</p> <p>10. Under Chapter 4390, Acts of '1895, providing “that in all criminal prosecutions hereafter begun in this State, if the defendant be found guilty of an offense lesser in degree, but included within the offense charged in the indictment or information, such verdict shall not be set aside by the court upon the ground that such verdict is contrary to the evidence, if the evidence produced in such case would have supported a finding, or if such count would have sustained a verdict of guilty of the greater offense,” a conviction for murder in the third degree will be sustained where upon the most favorable view of the evidence it shows that the defendants are guilty of murder in the second degree. The statute is merely declaratory, and the conviction under such circumstances would be sustained even in the absence of such a statute.</p>

<p>1. Motions for severance are addressed to the discretion of trial courts, and an appellate court will not interfere with the ruling denying such motion where there is nothing in the record showing the truth of the maters proposed as grounds therefor.</p> <p>2. Statements of matters of fact in motions cannot be taken as evidence of the facts therein .recited.</p> <p>3. Questions addressed to proposed jurors as to whether they “understand the meaning of a circumstantial evidence case,” and as to whether a case hypothetically stated depends upon circumstantial evidence, are properly excluded, because they do not tend to test the qualifications of the proposed jurors; nor are such questions authorized by section 1086 Revised Statutes, which provides that “when the nature of any case, civil or criminal, requires a knowledge of reading, writing and arithmetic, or either, to enable the juror to understand the evidence on the trial, it shall be cause of challenge if he does not possess such qualifications, to be determined by the judge presiding at the trial.”</p> <p>4. The court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will only be interfered with by an appellate court where clearly abused-</p> <p>5. Evidence of another and distinct crime committed by a defendant in no way connected by circumstances with the one for which he is being tried is inadmissible, but proof of any fact with its circumstances, even though amounting to a distinct crime, if it has some relative bearing upon the issue being tried is admissible.</p> <p>O. Evidence of the misconduct of a defendant in intentionally suppressing, destrojdng or concealing the evidences of a crime alleged to have been committed by him, is relevant.</p> <p>7. Evidence that a defendant charged with breaking and entering a building with intent to commit larceny subsequent to the alleged breaking intentionally burned the building alleged to have been broken, in order to conceal the physical evidences of such breaking is admissible.</p> <p>8. Evidence that goods alleged to have been stolen by breaking and entering a building were recently after the breaking found in the defendant’s possession and of the explanation of such possession by the defendant then given, is material, but evidence that the search was instituted and conducted under authority of another and distinct warrant, for another and distinct crime, in no way connected with the crime of larceny of the particular goods found or the breaking by which they were obtained, is inadmissible-</p> <p>9. Under section 1090, 1097, Revised Statutes, a witness may be questioned as to his previous conviction of crime in this State, and it is not necessary to produce the record of his conviction unless the witness denies or faiis to admit such conviction.</p> <p>10. The general rule is that evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness-</p> <p>lil. It is proper to show the relations of the doers to one another, which, with other relevant facts, may tend to support an inference of a conspiracy between them to commit a crime charged-</p> <p>12. If evidence introduced tends to prove an irrelevant or immaterial fact, as well as one material and relevant, the court properly refuses an instruction withdrawing such evidence entirely from the consideration of the jury, but errs if it refuses an instruction properly framed, limiting the consideration of such evidence by the jury, to its legitimate purpose-</p> <p>13. Remarks of the judge during the trial as to the credibility of a witness, or as to the weight of any evidence relevant to the issue, are an improper assumption of or infringement upon the province of the jury, and when duly excepted to by the party injured, they may be assigned as error, and constitute ground for reversal-</p> <p>14. The opinion of a witness as to the identity of a person seen by him, is admissible in all cases where the witness has a previous personal acquaintance with or knowledge of such person, and bases his opinion upon such acquaintance or knowledge.</p> <p>15. Evidence of other burglaries, and the finding of other stolen goods in other persons’ houses, and of other arrests for other offenses, made in the same neighborhood and about the same time, is properly excluded when offered in behalf of a defendant charged with a breaking and entry with intent to commit larceny.</p> <p>16. Upon the trial of two or more defendants charged with a breaking and entry with intent to commit larceny, any evidence tending to show a joint possession by the defendants, recently after the theft, of the goods alleged to have been stolen at the time of the breaking and entry, is admissible-</p> <p>17. Where property taken by a recent breaking and entry is found in the exclusive possession of one who offers no reasonable and credible explanation of his possession, the law authorizes the jury to presume or infer that he not only stole the property, but that he broke and entered the building from which it was stolen, although there is no other evidence connecting him with the breaking.</p> <p>18. Unless the breaking and entry and the larceny were parts of the same transaction, or if not parts of the same transaction, unless the breaking and entry and the larceny were committed by the same person, theexcusive possession of the recently-stolen property does not warrant the presumption that the possessor is guilty of breaking and entry, although it does warrant the presumption that he is guilty of larceny.</p>

<p>Criminal Law — Section 2618, Revised Statutes, Construed— Joinder of Different Offenses in One Indictment — Forcing Election Between Counts in Indictment — Medical Works, When Admissible as Evidence — Grouping in Single Assignment of Error Refusals to Give Divers Instructions' — Discussing the Penalties for Crimes in Argument to Jury — Imprisonment for Non-Payment of Fines Imposed-</p> <p>1. In a prosecution for the crime defined by Section 2618 of the Revised Statutes, it is immaterial whether the female was act- . ually enceinte or not, and it is unnecessary to allege or prove such fact; and when an information or indictment charging such crime follows the language of the statute it is sufficient.</p> <p>2. An indictment, or count in ait indictment, that sufficiently charges a crime, but that charges it with a conlinnmido, the continuendo clause thereof may properly be rejected as surplusage, when the offense charged is not a continuing one, and when such rejection' leaves the indictment intact and otherwise un obj ectionable.</p> <p>3. Under Section 8893, Revised Statutes, it is not error to refuse to quash an indictment or information upon the ground that it charges several distinct offenses in separate counts thereof, unless such indictment is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.</p> <p>4. It is within the sound discretion of the trial court whether it will or not require the prosecutor to elect upon which of several counts in an indictment he will try the accused; and where the various counts are properly joined therein and a conviction can legally be sustained upon any one, or upon all of such counts combined, it is proper to refuse to require such an election.</p> <p>5. Medical works, of however standard and approved authority on the subject to which they relate, cannot be read or introduced before juries as independent, substantive or affirmative proof, blit this rule is subject to the exception, that specified books may be introduced in rebuttal to contradict a witness who has testified to having derived therefrom teachings that they do not contain, or whose teachings are substantially different from that testified to.</p> <p>6. Where a single assignment of error is made to embrace allegations of error in the giving, or refusal to give more than one instruction asserting distinct propositions of law, an appellate court will go no further in the consideration of such an assignment after it has ascertained that there was no error in giving or refusing to give any one of the several instructions thus aggregated under the one assignment, but will then adjudge such .assignment of error to be not well taken.</p> <p>7. Except in cases of murder in the first degree, where a major- ’ ity of the jury may by a recommendation to mercy in their verdict commute the penalty from death to life imprisonment, trial juries under the laws of Florida have no concern whatever with the penalties to be imposed for crime, and it is therefore not improper for trial judges to refuse to inform or instruct the jury as to what penalties the laws prescribe for any given crime, or to refuse to permit counsel to discuss the same in their arguments to the jury.</p> <p>8. Under the provisions of Chapter 4026, Laws of ■l|89n, where the primary penalty imposed by the judge upon conviction of any crime consists only of a fine, or of a fine and costs of prosecution, the alternative penalty of imprisonment for non payment of such fine and costs should be in the county jail, and not in the penitentiary.</p>

<p>Writ of error to Circuit. Court Duval county. .</p>

<p>Appeal from Circuit Court Alachua county.</p>

<p>Writ of error to Circuit Court Hillsborough county.</p>

<p>Appeal from Circuit Court Orange county.</p>

<p>Writ of error to Circuit Court Marion county.</p>

<p>Writ of error to Circuit Court Duval County.</p>

<p>Writ of error to Circuit Court Leon county.</p>

<p>Writ of error to Circuit Court Duval county.</p>

<p>■Writ of error to Circuit Court Walton county.</p>

<p>Writ of error to Circuit Court Alachua county.</p>

<p>Appeal from Circuit Court Marion coúnty.</p>