Volume 41 — Florida Reports

Statement. On April 23, 1891, the appellee brought suit against appellant in the Circuit Court of Duval county, the declaration, filed on May 1, alleging in substance in the first count that plaintiff was the widow of one Daniel A. Fox-worth, deceased; that defendant, a Florida railroad corporation before, after and during each day of the month of December, 1890, was operating and managing a certain railroad extending between certain named points in this State and through…

Writ of error to the Circuit Court for Marion county. Statement. The defendant in error began an action of assumpsit against the plaintiff in error, in the Circuit Court of Marion county, the declaration filed December 5, 1892, containing only common counts for money received, money lent and accounts stated, in the sum of $2,000.

<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>1. Prior to the act of 1897, Chapter 4529, writs of scvre facias on writs of error were served on defendants in error resident in this State as other writs. By section 1017.- Rev. Stats., original process sued out against several persons composing, a mercantile or other firm, and served on any one member of said firm is made as valid as if served on each individual member thereof; but in order to have this effect on members of the firm not served, the service must be personally made on some other member. This statute should be strictly construed, and should not be expanded beyond its provisions.</p> <p>2. Service of scire facias on one .member of a mercantile firm in whose favor a joint judgment in interest has been rendered, by leaving a copy at his usual place of abode with a member of his family above the age of fifteen years, will not amount to service of the process on another member of the firm.</p> <p>3. A joint judgment in interest against two or more persons cannot be reviewed by the appellate court unless all the persons against whom the judgment is rendered are properly brought before the court.</p>

Statement. On December 15, 1894, appellant filed his bill against appellees in the Circuit Court of Hillsborough county, seeking foreclosure of a mortgage, reading as follows: “This indenture, made this the 17th day of July.

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

<p>1. A creditor by filing with an assignee for creditors his debt against the assignor, and accepting from such assignee a pro rata dividend upon such debt, in accordance with the terms of a general assignment for creditors made under the statutes of this State, does not thereby affect his right to subject to his debt • personal property reserved by the assignor from his assignment as exempt, but which in law is not exempt from such creditor’s debts, because the debt was contracted for the purchase money of the property.</p> <p>2. Under Section 1, Article X Constitution of 1885, “no property shall be exempt from sale * i:' * for the payment of obligations contracted for the purchase of said property,” and a debtor cannot by selecting certain personal property as a part of his exemption, and excepting same from the operation of a general assignment made by him clothe such property with an exemption from sale for the payment of obligations contracted for the purchase thereof.</p>

<p>1. An appeal in chancery taken within a period less than thirty days from the first day of the next succeeding term of the Supreme Court, returnable to the first day of such term, is entered in direct violation of law, confers no jurisdiction upon the Supreme Court, and it constitutes no grounds for dismissing a subsequent appeal duly taken by the same party from the same decree.</p> <p>2. Under Chapter 4528, Acts of 1897, the record of the entry of appeal in the chancery order book when duly made, gives to the Supreme Court jurisdiction over the person of the appellee; but an appellee can if he chooses waive the formal record of the entry of appeal, and he can submit himself to the jurisdiction of the Supreme Court by a voluntary appearance notwithstanding a failure to record the notice of appeal.</p> <p>3. Where the transcript on appeal fails to show a proper record of the entry of appeal, the omission may be supplied by competent evidence of such record, dehors the transcript.</p> <p>4. Where the notice of appeal incorporated into the transcript is followed by a certificate of the clerk showing that it was duly filed, and that it was entered by him in the chancery order book, but omits to give the date of such record or entry in the chancery order book, it will be presumed, in the absence of anything to the contrary, that the clerk discharged his statutory duty by recording it “forthwith” upon its being filed.</p> <p>5. The statutes of this State do not require that an apppeal be taken to the next succeeding term of the Supreme Court after the entry of the final decree appealed from, but they authorize an appeal to be taken at any time within six months from the date of the decree appealed from, and such appeal is required to be made returnable to the first day of, or, in certain cases, to a day within, the next succeeding term of the Supreme Court afi ter the entry of appeal.</p> <p>6. In order for the Supreme Court to obtain jurisdiction over the appellees by reason of the record of the entry of appeal, the entry as recorded in the chancery order book must be sufficiently full and explicit to advise the parties entitled to notice, as well as the appellate court, that an appeal has been taken by definitely named parties against definitely named persons.</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>

Statement. A bill was filed in this case in July, 1891, by Daniel Burnett who died intestate after a decree in his favor and after an appeal to this court, but before the submission of the case here. The appellee, voluntarily came in and was made a party and publication was made as to the heirs of Burnett.

Writ of error to the Circuit Court for Duval county. 'The facts in the case are stated in the opinion of tlie court. Motion to vacate the supersedeas.

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

<p>1. Where an exception is general to the refusal to give several instructions asserting distinct propositions of law, an appellate court will examine' them no further than to ascertain that some one of them was incorrect and therefore properly refused.</p> <p>2. The liability assumed by the drawing of a bill of exchange is clearly recognized by the law! the mere act of drawing such a bill importing the most certain and precise contract for presumed adequate consideration that the bill shall be accepted and paid, and that if it is not the drawer will pay it.</p> <p>3. Evidence examined and held insufficient to support the verdict.</p>

Statement. On August 5, 1893, appellee filed his bill in equity, in the Circuit Court of Hernando* county, against appellant and George N. Sarven, Willie B. Mayes and her husband, James M. Mayes, alleging that complainant was on and before November 18, 1882, seized in fee and possessed of certain lands situated in Hernando county, therein particularly described, and on said day bargained and sold same to defendants Walker and Sarven for the sum of $3,579, for which sum said…

<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>1. Where a devisee accepts the provisions of the will and goes into the possession of the land devised to her, by permission of the executor, and upon the understanding that the land will be surrendered when needed to pay debts, and such relation is never repudiated, such possession is not adverse in point of fact.</p> <p>2. The title of a devisee is derived from the will and does not vest until the testator’s death.</p> <p>3. A creditor who elects to accept a devise of real estate in a will in satisfaction of his claim, and thereby comes in under the will, has no rights superior to creditors of the estate. . By accepting the devise in satisfaction of his debt he must be regarded as doing so under the rule that all just demands against the estate must be paid as directed by statute before he can have any distribution-under the will.</p> <p>4. This court has ruled that if the parties go to trial on an immaterial issue tendered by plea, the- defendant has the right to have the trial court to charge the jury and submit to them, such issue; but it has not held that final judgment-should be entered upon the finding on such issue. Where a trial is had upon an entirely immaterial issue, not determining the rights of the parties, the court can not know for whom to give judgment. In such a case judment non obstante veredicto or repleader', should be awarded, and if this is not done, and judgment be entered upon the verdict, the appellate court will reverse the judgment, though it may not direct a judgment of repleader.</p>

Writ of error to the Circuit Court for Escambia county. Statement. On February 10, 1894, defendant in error began an action/on the case for deceit against plaintiff in error in the Circuit Court of Escambia county.

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

<p>Criminal Law — When Appellate Court Will Reverse on the Evidence — Appellate Practice — Evidence on Motions Must be Exhibited by Bill of Exceptions.</p> <p>1. An appellate court will not set aside a verdict as being against the evidence where there is any evidence to support it, unless it may well be assumed that the jury were improperly influenced by considerations outside of the evidence; and a verdict will not ordinarily be set aside by such court where its propriety depends entirely upon the credibility of conflicting witnesses.</p> <p>2. Evidence used or presented in support of a motion for new trial must be exhibited to an appellate court in and by a bill of exceptions, otherwise such court can not consider it.</p>

<p>1. It is not error for the trial court to refuse to require the State to elect upon which count of the indictment it will rely for conviction where there are two counts for falsely and fraudulently altering a county warrant, both alleging the alteration of the same paper, based upon the same transaction, and the only difference being as to the person or body corporate that was intended toi be defrauded.</p> <p>2. Within the meaning of Section 2479, Revised Statutes, a person can commit the crime of forgery with intent to defraud a county.</p> <p>3. Under an indictment for the forgery of a county warrant that does not pass current as money, proof on the part of the State that the warrant went into the hands of the accused in its original unaltered condition, and that he subsequently passed it for value in a forged condition, is sufficient to show that the accused either altered the order himself, or caused it to be done, or by conspiracy with others assented to the alteration, and such testimony, in the absence of satisfactory showing that he had no complicity with the forgery, is sufficient to sustain a verdict of guilty.</p>

<p>1. Under Section iioi, Revised Statutes, permitting a party producing a witness to impeach him when he proves adverse, a witness can not be impeached as to his statements when he simply fails to testify to beneficial facts that were expected from him, and when he states nothing that is prejudicial to the party who offers him.</p> <p>2. When the testimony authorizes it the court commits no error in instructing the jury that a necessity brought about by a party who acts under its compulsion can not be relied upon to justify his conduct. The aggressor in a personal difficulty, and not reasonably free from fault, can not acquit himself of liability for its consequences on the ground of self defense, unless after having begun the difficulty he in good faith declines the combat and his adversary becomes the aggressor.</p> <p>3. The verdict in this case is sustained by the evidence.</p>

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

<p>Criminal Law — Larceny—Claim of Title to Property Stolen — Sentence in the Alternative.</p> <p>1. In all cases where one in go.od faith takes another’s property under claim of title in himself, he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be. And the same is true where the taking is on behalf of another, believed to be the true owner. Still, if the claim is dishonest — a mere pretence — it will not protect the taker.</p> <p>2. In charges of larceny where the taking is open, and there is no subsequent attempt to conceal the property, and no denial, but an avowal of the taking, a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence, before a conviction is authorized.</p> <p>3. Under the provisions of Chapter 4026, act of 1891, where the primary penalty imposed for crime is a fine and the costs of prosecution only, the- imprisonment for non-payment of such fine and costs should be in the cotmty jaÁl instead of the State penitentiary.</p>

<p>1. One who assaults another with intent to kill him, under such circumstances as that had the assault resulted in the death of such other the homicide would have been manslaughter, may, under Section 2403, Revised Statutes, be convicted and punished for assault with intent to commit a felony.</p> <p>2. An indictment charging an assault with intent to commit the felony of murder in the highest degree, charges likewise an assault with intent to commit every grade or degree of unlawful homicide that can be committed in pursuance of a homicidal intent, and is sufficient to sustain a conviction for assault with intent to commit the felony of manslaughter.</p> <p>3. One who assaults another with a deadly weapon, not having a premeditated design to effect the latter’s death, may be convicted of an aggravated assault under Section 2402, Revised Statutes, but if the assault is made with homicidal intent and under such circumstances that had it resulted in the death of the person assaulted, the person committing such assault would have been guilty of manslaughter, he may be convicted of an assault with intent to commit a felony under Section 2403, Revised Statutes.</p>

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

<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>1. It is futile to object in the appellate court that the trial court did not instruct the jury upon all the grades of homicide to which the evidence may be applicable when no request was made to instruct on the lesser grades than that of which the accused was convicted.</p> <p>2. Since the act of 189s, Chapter 4400, a defendant in a criminal prosecution has no right to make a sworn statement, to the jury without the right of cross-examination as other witnesses, by the State.</p> <p>3. A medical witness was examined by the State as to the character of wounds inflicted upon the deceased. After stating on cross-examination that he had known the deceased for five years; he was asked by the defendant what was the deceased’s character' in the community in which she lived: Held, That the question was properly excluded because the testimony sought to be elicited thereby was not in cross of anything brought out in the direct evidence; that no foundation had been laid at the time for the introduction of evidence as to the character of the deceased, nor was the particular phase of character indicated.</p> <p>4. Testimony tending to impeach the moral character of the deceased, or tending to show general bad character, when such evidence does not come within the rule announced in this State to explain or tend to explain the conduct of the deceased at the time of killing when the plea is self-defence, should be excluded.</p> <p>5. When a person of sound mind criminally acts upon the impulse of heat or passion or feelings produced by motives of anger, hatred or revenge, he is responsible for his acts.</p> <p>6. Charges of the court to the jury should be based upon the testimony in the case, andswhen a charge requested is not authorized by the testimony it is not error to refuse it.</p>

<p>Appeal from Circuit Court, Marion county; William A. Hocker, Judge.</p>

<p>Appeal from Circuit Court, Alachua county; Jesse J. Finley, Judge.</p>

<p>Appeal from Circuit Court, Pasco county;. Barron Phillips, Judge.</p>

<p>Appeal from Circuit Court, Duval county; Rhydon M. Call, Judge.</p>

<p>Writ of error to Circuit Court, Pasco county; Barron Phillips, Judge.</p>

<p>Appeal from Circuit Court, Madison county; John F. White, Judge.</p>

<p>Writ of error to Circuit Court, Lake county; John D. Broome, Judge.</p>

<p>Writ of error to Circuit Court, Volusia county; John D. Broome, Judge.</p>

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

Writ of error to the Circuit Court for Duval county. Statement. On September 11, 1899, the Circuit Court of Duval county issued an alternative writ of mandamus directed to defendant in error.

<p>Appeal from the Circuit Court for Alachua county.</p> <p>Motion to dismiss appeal.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Contempt Procedure — Forum to Punish For — Advice of Counsel as Defense In — Unauthorized Advice of Judge as Defense— Duty of Receiver on Supercedeas of Decree Appointing Him.</p> <p>1. When an appeal is taken from an interlocutory decree in chancery, and an order is made by the Circuit Judge, under subdivision 2 of section 1458, Revised Statutes, that such appeal shall operate as a supersedeas of the decree appealed from, the power of such Circuit Judge over such supersedeas becomes functus officio. He can not vacate or disturb it, but any application for its discharge or vacation must be addressed to the appellate court, whose process it is; and, likewise, any breach "or violation of it must be dealt with by the appellate court, and not by the Circuit Judge.</p> <p>2. The well-settled rule is that it is no justification to a proceeding as for a contempt for the breach of an injunction or supersedeas order that the breach was committed under the advice ■ of counsel.</p> <p>3. Where an interlocutory decree in chancery, appointing a receiver, is appealed from, and such appeal is ordered to be a • supersedeas of such decree, the power of the Circuit Judge in the premises over the receiver and the properties in his hands under such decree are suspended by such supersedeas; and, until the appellate court has acted in the case, he has no authority to make any further order relative to the properties in the receiver’s hands under the decree superseded. And no order by the Circuit Judge while such sup&rsedeas is in force will excuse the receiver for a violation of such supersedeas.</p> <p>4. When an appeal is taken from an interlocutory decree appointing a receiver, and such appeal ordered to be a supersedeas of such decree, such supersedeas does not have the effect of dAschwrging the receiver, but simply suspends his authority as such pending the supersedeas. Such supersedeas suspends the 'decree appointing him as receiver, and makes it his duty at once to cease all action as receiver, and to restore the properties that have come to his hands as such to the possession of the party from whose custody it was taken by the decree superseded.</p>

<p>1. When there are both special and general grants of power to municipal corporations to pass ordinances, those given under the special grant, as a general rule, can only be exercised in the cases and to the extent as respects those matters allowed by the charter or incorporating act; and the powers given under the general grant do not enlarge or annul those conferred by the special grant in respect to its subject-matters!, but gives authority to pass ordinances, reasonable in their character, upon all other matters within the scope of the municipal authority not repugnant to the Constitution and laws of the State.</p> <p>2. The terms “regulate” and “restrain,” contained in Section '696, Revised Statutes, providing that the city or town council shall have power to regulate and restrain all tippling, bar-rooms, and all places where beer, wine or spirituous liquor of any kind is sold at retail, or to be drank upon the premises where sold; to require all such places to be kept and used subject to such reasonable regulations as the council may .prescribe, and to require all keepers of such places to procure from the city or town a license for keeping the- same under pains, penalties and forfeitures to be prescribed, do not include the power to prohibit the sale of such liquors in the limits of the city or town, but contemplate the existence and continuance of places for the sale of the same, and restrict the city or town to reasonable regulations and restraints in the conduct of such business.</p> <p>3. The general powers conferred upon cities and towns by Section 673, Revised Statutes, to pass ordinances that may be necessary or expedient to preserve the public peace and morals, for the suppression of riots and disorderly assemblies, and for the order and government of the city or town, construed in con- ' nection with Sections 696 and 677, do not authorize the passage of an ordinance making the sale of intoxicating liquors, wines or beer an offense, even when the county in which the city or town is situated has voted against the sale of such liquors at an election held in pursuance of Article XIX of the Constitution, and laws adopted to put the same in operation.</p> <p>4. Section 696, Revised Statutes, authorizing cities and towns to license places for the sale of intoxicating liquors, is not repealed by a vote against the sale of the same in a county in which the city or town is situated, under Article XIX of the Constitution, but is only suspended during the time that the local option continues in force.</p> <p>S- The Supreme Court has power to review and quash on the common law writ of certiorari the proceedings of inferior tribunals when they proceed in a cause without jurisdiction.</p>

<p>Mandamus.</p> <p>This is a case of original jurisdiction.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>This is a case of original jurisdiction.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>This is a case of original jurisdiction.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appellate Practice — Entry of Appeal Should Specify a Return Day.</p> <p>An entry of appeal that specifies no term of the court or return day to which the appeal is taken is fatally defective, and the record of such an entry of appeal does not notify the appellee of any definite time at which he is to appear therein before the appellate court, and can not, therefore,- be effectual as notice of such appeal. The appeal in such a case will be dismissed</p>

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

<p>1. A plea of set-off must describe the debt intended to be set off with the same certainty as in a declaration for the like demand.</p> <p>2. Attorney’s fees and other expenses incurred in relation to the attachment, or in procuring its dissolution, are properly allowed as elements of damage in actions upon attachment bonds; but fees and expenses incurred in defending the principal suit can not be allowed in the absence of statute, or a stipulation in the bond to that effect.</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>1. The law in the State in which real estate is situated furnishes the rule as to its descent, alienation and transfer, the construction and validity of conveyances thereof, and the capacity of the parties to such conveyances,' as well as their rights under the same.</p> <p>2. A married woman was made a free dealer by decree of a chancery court in the State of Alabama, under section 2731 of the code of 1876, which did not authorize her to be made a free dealer with general powers to contract as a feme sole, but only in reference to her statutory and other separate estate to the extent mentioned in the statute, and no further; she subsequently moved to this State, acquired separate statutory real estate, and engaged in the mercantile business of buying and selling goods: Heldl that she did not acquire the status of a free dealer under the laws of this State by virtue of the decree made in the State of Alabama, and that a bill in equity was proper to subject her separate statutory property to the payment of debts contracted by her for goods used in her mercantile business.</p> <p>3. Under the laws of Florida the husband and wife must join in all sales, transfers and conveyances of the property of the wife. In reference to personal property the rule is liberal, but some joinder of the husband and wife in the- disposition must be shown and in reference to real estate it must be done by deed acknowledged by the wife before some officer authorized to take acknowledgments, separately and apart from her husband, that she executed the deed freely, voluntarily and without compulsion, constraint, apprehension or fear of or from her husband.</p> <p>4. A creditor, knowing that his debtor is insolvent-and engaged in disposing of his property in order that it might not be reached by pressing creditors, can not purchase more than is necessary to protect himself of such debtor and pay him the difference in cash.</p>

<p>Appeal from the Circuit Court for Sumter 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 Jackson county. Statement.

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

<p>1. Where all the provisions of a city ordinance are connected in subject-matter depending upon each other, operating together for the same purpose, or otherwise so connected together in meaning that it can not be presumed that the legislative power of the city would have passed the one without the other, and some of the provisions are beyond the power of the city to enact, the whole ordinance will be declared void; but where some parts of the ordinance are within the power of the city to enact and are not connected with or dependent upon the invalid portions, the ordinance may be void in part and valid as to the residue.</p> <p>2. The city of Jacksonville is not required by its charter to levy its license taxes by annual ordinance, but has power to enact a general ordinance of this character to remain in force until repealed in some manner provided for by law.</p> <p>3. The city of Jacksonville has power under its special charter and the general revenue law of 189s to tax any business, profession or occupation engaged in or carried on within the city, whether such business, profession or occupation be taxed by the State or not, and power to fix the amounts to be charged therefor for purposes of revenue, and is not limited to fifty per cent, of the State tax upon those businesses, professions or occupa: tions taxed by the State.</p> <p>4. The city of Jacksonville has no power to segregate the several elements of right that accrue to the citizen under one taxable privilege as recognized, defined and declared by the general statute law of the State, and to tax each of such elements as a separate and distinct privilege of its own creation, by dividing several privileges into many, and requiring separate licenses to sell special articles which necessarily belong to one State privilege and which the State permits to be sold under.one license.</p> <p>5. Under Section 5, Article IX, constitution of 1885, the legislature may delegate to cities and towns the right to select the occupations upon which they shall impose license taxes for municipal purposes, and the right to fix the amounts of license taxes to be imposed by them.</p>

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

<p>Criminal Law — Appellate Practice — Exceptions-—Assignments of Error — -Order of Evidence — Reasonable Doubt — Presence of Accused at Trial.</p> <p>1. Where a single general exception is made to embrace two or more instructions given upon different propositions of law, such exception is not available before an appellate court if any one of the instructions embraced therein is correct.</p> <p>2. When an assignment of error is predicated upon 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 the court correctly gave, or refused to give, any one of the instructions thus aggregated in the single assignment of error.</p> <p>3. The court refused to give the following instruction on reasonable doubt-: “If the jury are not satisfied beyond a reasonable doubt, to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the defendant’s guilt, they should find him not guilty. And it is not necessary to raise a reasonable doubt that .the jury should find from all the evidence a probability of the defendant’s innocence, but such a doubt may arise even when there is no probability of his innocence in the testimony. And. if the jury have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to find the defendant not guilty:” Eeld, That its refusal was not error, because it is too involved and calculated to confuse and mislead.</p> <p>4. Trial courts have a broad discretion in directing the course of a trial, and over the order of the introduction of evidence, and the examination of witnesses; and the exercise of this discretion will not be reversed except in cases of abuse. Eeld, That it was no abuse of such discretion to permit the State Attorney to recall, for further cross-examination, a witness for the .defense who had been examined in chief, cross examined and 'dismissed from the witness stand, and this after other witnesses for the defense had been examined.</p> <p>5. When the record shows that the defendant was personally present in court when the taking of evidence was concluded, when the arguments of counsel were in progress, and at the time of the retirement of the jury to consider their verdict, and 'that the verdict was rendered on the same day-, without any recess of the court being shown in the mean time, the presumption is that' the defendant continued to be and was present at the rendition of the verdict.</p>

<p>1. Counsel for tlie prosecution in a criminal case are not bound to introduce all the witnesses whose names are endorsed upon the indictment and who are shown by the State’s evidence to have witnessed the commission of the offence.</p> <p>2. A general assignment of error alleging error in giving or in refusing to give a number of instructions asserting separate and distinct propositions of law, will be overruled if any one of the instructions so embraced in such assignment be found in the one case to have been properly given and in the other properly refused.</p> <p>3- An instruction in a criminal case which puts the burden upon the State of negativing beyond a reasonable doubt defensive matter, the burden of affirmatively showing which is upon the ( defendant; and that too, whether he affirmatively establishes such matter by proof or not, is properly refused. '</p> <p>4. Though the danger need not be actual, nor the necessity to kill real, to justify a homicide in self-defense, yet the circumstances surrounding and as they appear to the slayer at the time he does take life must be such as would induce a reasonably cautious man to believe that the danger was actual and the necessity real, in order that the slayer may be justified in acting upon his own belief to that effect.</p> <p>5. Evidence examined and found sufficient to support the verdict for murder in the second degree.</p>

<p>Criminal Law — Arraignment Not Necessary on Second Trial— When Peremptory Challenges Must be Taken — Single Exceptions to Refusals to Instruct — Proof of Wounds as Alleged — Abuse of Argument.</p> <p>1. Where a defendant on a first trial has been regularly arraigned and plead not guilty, it is not necessary, upon a retrial of the . same defendant upon the same indictment, to re-arraign him, or for him to plead anew.</p> <p>2. While defendants upon trial for crime should be protected in the proper exercise of their right of peremptory challenge, yet such right must be seasonably exercised Before the jurors are sworn in chief; otherwise it is waived.</p> <p>. 3. Where a single exception is made to embrace the refusals of the trial judge to give two or more requested instructions, containing distinct propositions of law, the appellate court will not sustain such an exception if it finds any one of the refused instructions to have been properly refused.</p> <p>4. In an indictment for murder the substance of the charge is, that the prisoner unlawfully and with a premeditated design killed the deceased by means of shooting, poisoning, cutting, blows or bruises, or the like; it is, therefore sufficient if the proof agree with the allegation in its substance and general character, without precise conformity in every particular. In other words, an indictment describing a thing by its generic term is supported by proof of a species which is clearly comprehended within such description. Under this rule where the indictment alleges the death to have been caused by shooting, and describes the mortal wound to have been of the breadth of one-quarter of an inch and of a depth of four inches, the proof is sufficient if it shows that death resulted from numerous wounds inflicted by shot of small size fired from a gun, but none of which were of the dimensions alleged in the indictment.</p> <p>5. It is improper for counsel to add, by his own statement in argument, a material fact, without the authority of evidence, to the testimony as submitted to the jury. A statement of such a fact by counsel not authorized or proven by the evidence should not be allowed to go to the jury. The judge should stop him at once; and if he fails to do so, when requested, and the impropriety is great, and exception is duly taken, it is ground for a new trial.</p>

<p>Writ of error to the Circuit Court for Escambia 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 Hamilton county. Statement. The following is a statement of the Substance of the evidence in this cause, upon which the decision of the court is predicated: T. H. Alexander, for the State, testified; I know the defendant (pointing him out). I know Barr Groff, sometime in the fall of 1896 he came to me and we went out to the west side of the town of Jasper; we there found the remains of a dead human body.

<p>Criminal Law — Evidence—Admissibility of Indirect, Collateral or Circumstantial — Proof of Marriage.</p> <p>1. “Great latitude is to be allowed in the reception of indirect, or circumstantial evidence. It includes all evidence of an indirect nature, whether the inferences afforded by it be drawn from prior experience, or be a deduction of reason from the circumstances of the particular case, or of reason aided by experience. The competency of a collateral fact to be used as the basis of legitimate argument, is not to be determined by the conclusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these fnay tend, even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth.”</p> <p>2. “The proof of marriage, as of other issues, is either by direct evidence establishing the fact, or by evidence of collateral facts and circumstances from which its existence may be inferred. Evidence of the former kind, or what is equivalent to it, is required upon the trial of indictments for polygamy and adultery, and in actions for criminal conversation; it being necessary, in such cases, to prove a marriage valid in all respects, but in all other cases any satisfactory evidence in sufficient. General conduct is admissible to prove the fact of the marriage of the parties in ordinary cases.”</p> <p>3. When the verdict convicts of murder in the second degree, Chapter 4392, act of 189s, forbids any interference with it on the ground that it is not supported by the evidence, if the proofs were sufficient to sustain a higher degree of the crime, even though such proofs do not in terms make out a case of murder in the second degree as defined by the statute.</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>I- An indictment under Section 2474, Revised Statutes, for fraudulently altering and changing the marks and brands of an animal, to-wit: a steer, belonging to another, with intent to claim the same, need not allege the name of the owner of the mark and brand as altered; and an allegation therein that the fraudulent alteration was effected by defendant “with intent to claim said steer,” is sufficiently definite to apprise him of the specific intent charged, and to enable him to prepare his defense to that branch of the charge against him.</p> <p>2. The formal conclusion of indictments whereby it is alleged that the acts charged are “contrary to the form of the statute” or “against the peace and dignity” of the State, is not a matter of substance, but formal merely, and under Section 2893, Revised Statutes, it is no longer material that the indictment omits such conclusion.</p> <p>3. A plea in abatement to the effect that a member of the grand jury that found an indictment was not a qualified juror at the time his name was selected and placed in the jury box by the county commissioners, but with no allegation that the juror was disqualified at the time he was enyianelled, or performed service as" such, is bad.</p> <p>4. An application for a continuance upon the ground of the absence of a witness must show that the applicant has exercised due diligence to procure the attendance of such witness, or to procure his deposition if the law provides for taking such deposition.</p> <p>5. Motions for change of venue in criminal cases are addressed to the sound judicial discretion of the presiding judge, and where a motion of this character, based upon the ground that ' public sentiment is such that a fair and impartial trial can not be had in the county, is supported only by a defendant’s affidavit, an appellate court will not reverse a ruling denying such motion, in the absence of some showing that the defendant was prevented from securing corroborative evidence by hostile public sentiment.</p> <p>6. An appellate court will not reverse the ruling of the trial court overruling a challenge for cause to a proposed juroi-, unless the grounds of challenge are sustained by proof offered in support thereof, or are otherwise shown to be true by the record.</p> <p>7. An instruction to the effect that the testimony of an accomplice is competent evidence, the credibility of such accomplice is for the jury to pass upon as they do upon any other witness; while the testimony of an accomplice will sustain a verdict when uncorroborated, yet such testimony must be received with great caution; but if such testimony carries conviction and the jury are convinced of its truth, they should give to it the same effect as would be allowed to a witness who is in no way implicated in the offence, is not erroneous.</p> <p>8. A general assignment of error alleging error in the refusal to give a number of instructions asserting separate and distinct propositions of law will be overruled if any one of such instructions' be found to have been properly refused.</p> <p>9. If in any case a judgment can be reversed for failure of the trial judge to define the term “reasonable doubt” when he has instructed the jury that thej must be satisfied of defend- . ant’s guilt beyond a reasonable doubt and give him the benefit of every such doubt, it can only be had in cases where the party complaining of. such omission presents to the trial judge an instruction containing a correct definition of the term, and 'excepts to the court’s refusal to give it.</p>

<p>1. The verity of the recor'd proper that has been made up and exists in the lower court, or a bill of exceptions that has been settled and signed by the trial judge and made a part of the record as provided by statute, can not be questioned in the Supreme Court.</p> <p>2. When a bill of exceptions comes on for settlement before the trial judge, and objections are made to the insertion of matter in the bill, but it is inserted by direction of the judge and the bill is signed by him and filed in the cause, it can not be insisted in the appellate court that the matter objected to is no part of the bill. The statute provides that when a judge refuses to settle and sign a proper bill of exceptions when seasonably tendered to him, three persons may sign it in his presence.</p> <p>3. An information filed in a criminal court of record had appended to it an affidavit in form prescribed by statute, and after verdict it was objected in motions in arrest of judgment and for new trial that the prosecuting officer did not in fact swear to the information: Held, That such objection was waived by pleading to the merits and going to trial.</p> <p>4. The grounds that disqualify judges and jurors are not coextensive under the statutes of Florida. Under Section 967, Revised Statutes, the grounds that disqualify a judge are when he is a party to the suit or is interested therein, or when he would be excluded from being a juror by reason of interest, consanguinity or affinity to either of the parties; and under Section 1086 a juror may be examined to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice, and when it shall appear to the court that the juror does not stand indifferent in the cause, or is otherwise incompetent, another shall be called in his stead.</p> <p>5. Mere bias or prejudice, however strong, is no ground of disqualification of a judge of a criminal court of record under the 'statutes existing in Florida.</p> <p>6. Questions touching interest, motive or animus of a witness are not collateral or immaterial, and such matters may be shown as independent evidence to be considered by the jury in estimating the credibility of the witness.</p>

<p>Criminal Law — 'Section 2516, Revised Statutes, Construed — Section 2888, Revised Statutes, Construed — Plea .of Autrefois Acquit — The Word Wilful Defined — Demurrer to. Replication to Plea Reaches Back to the Plea.</p> <p>1. It is not necessary in an indictment under Section 2516, Revised Statutes, for wilfully injuring, destroying or carrying away timber or wood from the land of another, to allege an entry upon such land by the trespasser, or that such entry was unlawful or felonious. The signification of the word . “wilful” as used in this section of the statute is that the acts prohibited must be done with an evil intent and without justifiable excuse. This section of the statute so fully defines the crime thereby prohibited that an indictment following its language, without enlargement, is sufficient.</p> <p>2. A demurrer to a replication to a plea in bar reaches the plea if defective.</p> <p>3. Under ' the provisions of Section 2888, Revised Statutes, an acquittal by a jury upon a regular and orderly trial may be effectually pleaded in bar of another information or indictment for the same offence, notwithstanding any defect in the form or substance of the indictment upon which such acquittal was had.</p> <p>4. When a plea of autrefois acquit, in the approved form, alleging all the essentials to such a defense is interposed, a replication contesting its truth can only deny the existence of the record pleaded, or the identity of the person or offences therein alleged. The record of such former acquittal can not be averred against or avoided by matters dehors such record.</p>

<p>Appeal from Circuit Court, Duval county, Rhydon M. Call, Judge.</p>

<p>Writ of error to Circuit Court, Gadsden county, John W. Malone, Judge.</p>

<p>Writ of error to Circuit Court, Lake county; Minor S. Jones, Judge.</p>

<p>Appeal from Circuit Court, Duval county; Rhydon M. Call, Judge.</p>

<p>Appeal from Circuit Court, Duval county; Rhydon M. Call, Judge.</p>