Volume 47 — Florida Reports

This case was decided by the court En Banc. Writ of error to the Criminal Court of Record for Escambia county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Criminal Court of Record for Duval cofinty. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Criminal Court of Record for Escambia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for DeSoto county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Columbia county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Dade county. Statement. The defendant was indicted at the fall term of the Circuit Court of Dade county, A. D. 1903, for breaking and entering a dwelling house with intent to commit a felony, to-wit: with intent to steal therefrom goods of the value of $100, being at the time armed with a dangerous weapon, and with making an assault upon W. C. Fogg, who was lawfully therein.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Walton county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Criminal Court of Record for Escambia county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Columbia county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Hamilton county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Columbia county. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court Bn Banx.</p> <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>

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Brevard county. Statement. The plaintiff in error (hereinafter referred to as the “defendant”), at the fall term, 1902, of the Circuit Court for Osceola county, was indicted for the larceny of certain cattle, on the 9th day of April, 1903, at an adjourned term of said court, the defendant was arraigned upon said indictment and pleaded thereto not guilty.

This case was decided by the court Bn Banc. Writ of error to the Criminal Court of Record for Duval county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Columbia county. . The_ facts in the case are stated in the opinion of the court.

<p>1. One who assaults another with intent (but not premeditated design) to kill him, where the assault is accompanied by an act which if death had resulted therefrom would have constituted murder in the second degree under the statute defining that degree of unlawful homicide, is guilty of an assault with intent to commit the felony of murder in the second degree and not merely of an aggravated assault.</p> <p>2. An indictment or information charging in sufficient language an assault with intent to commit the felony of murder in the first degree charges likewise an. assault with intent to commit the felony of murder in the second degree and is sufficient to support a conviction for the latter degree of the offense.</p> <p>3. An indictment or information for assault with intent to commit the felony of murder in the first degree need not allege in terms that the intent was to commit a felony, it being sufficient to allege that the assault was committed in pursuance of and from a premeditated design and intent unlawfully to kill and murder the party assaulted.</p> <p>4. An indictment or information for assault with intent to commit the felony of murder in the first degree with a pistol, need not allege that the accused had and held the pistol in his hand, the allegation thht he had and held the pistol being sufficient.</p> <p>5. An indictment or information for assault with intent to commit the felony of murder in the first degree with a pistol, need not allege that the pistol was loaded, nor that defendant fired it, nor that the party assaulted was struck with the pistol or by a shot therefrom, nor that the pistol was a deadly weapon, nor that the assault was committed with intent to murder with a deadly weapon, nor that the pistol was used in such a manner as to constitute it a deadly weapon.</p> <p>6. Section 2403, Rev. Stats., 1892, punishing assaults with intent to commit felonies does not require that the assault shall be made with a deadly weapon, nor that it shall be accompanied by a battery.</p> <p>7. Though an indictment or information .for assault with intent to commit the felony of murder in the fir.st degree alleges a battery in addition to the other elements of the offense, the failure to prove such allegation does not affect the validity of the verdict finding defendant guilty of assault with intent to commit the felony of murder in the second degree.</p> <p>8. If the party upon whom an assault with intent to commit the felony of murder was always known and called by the name alleged in the indictment or information in the county where the offense was committed, it is of no consequence that the name so alleged is an assumed name.</p>

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Columbia county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Bradford county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Criminal Court of Record for Hillsborough county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Madison county. Statement.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Osceola county. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Santa Rosa county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Volusia county. The facts in the' case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Madison county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Orange county. The facts in the case are stated in the opinion of the court.

This case was decided by Divisio'n B. Writ of error to the Circuit Court for Marion county. ' Statement. On May 17th, 1900, plaintiff in error sued out a writ of garnishment against the Florida Central & Peninsular Railroad Company, in a suit against Frederick Gesterding then pending in the Circuit Court of Marion county.

This case was decided by Division B. Writ of error to the Circuit Court for Citrus county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Santa Rosa county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Escambia county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Jackson county. The facts in the case are stated in the opinion of the court.

This Case was decided by Division B. Writ of error to the Circuit Court for Citrus county. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court Bn Banc.</p> <p>Writ of error to the Circuit Court of Duval county.</p> <p> Statement. </p> <p>The defendant in error sued the plaintiffs in error in Circuit Court of Duval county. The declaration is as follows : 1. The plaintiff, Alice M. Kerrison, by D. U. Fletcher, her attorney, sues Albert K. Leon, B. Frank Manier, Jr., and Cromwell Gibbons, for that whereas the defendants converted to their own use, and wrongfully deprived the plaintiff of the use and possession of the plaintiff’s goods, that is to say, one steam yacht, called the “Artesia,” of the burden of thirty tons or thereabouts, with all the appurtenances, tackle, apparel and furniture to the same belonging, all of the value of five thousand dollars ($5000.00), to the plaintiff’s damage of five thousand dollars ($5000.00), and plaintiff claims five thousand dollars.</p> <p>2. And plaintiff further sues the defendants for that whereas, to-wit: on May 25, 1899, plaintiff was the owner of certain property, that is to say, one steam yacht called the “Artesia,” of the burden of thirty tons or thereabouts, with her appurtenances, tackle, apparel and furniture of the value of five thousand dollars and the said property being then in the custody and possession of one J. Davenport Kerrison; the defendants with said J. Davenport Kerrison executed their certain contract of charter and hiring of said property in words and figures following, to-wit: “These articles of agreement made and entered into this 25th day of May, A. D. 1899, by and between J. Davenport Kerrison, master and’ part owner of steam yacht ‘Artesia,’ of the county of Duval, State of Florida, party of the first part, and Cromwell Gibbons, A. K. Leon and B. F. Manier, Jr., of the county of Duval and State of Florida, parties of the second part, witnesseth: That the party of the first part has this day chartered and hired unto the parties of the second part, the steam yacht ‘Artesia,’ of the City of Jacksonville, Florida, and of the burden of thirty tons or thereabouts, with all the appurtenances, cables, anchors, chains, etc., which belong to the said steam yacht, for the term of one year from the 25th day of May, 1899, said vessel to be delivered at the port of Jacksonville, Florida, by the said party of the .first part to the said parties of the second part.</p> <p>For the use of the said steam yacht, the said Cromwell Gibbons, A. K. Leon and B. F. Manier, Jr., hereby agree and bind themselves to pay to the said J. Davenport Kerrison one dollar ($1.00).</p> <p>And it is further understood that the said Cromwell Gibbons, A. K. Leon and B. F. Manier, Jr., shall be at all the expense of repairing, manning and otherwise furnishing said steam yacht, for the period above stated, and shall return the same to the said J. Davenport Kerrison in as good condition as it is now, with the exception of ordinary wear and tear, and the possible damage resulting from bad weather.</p> <p>In witness whereof, the said parties to this agreement have hereunto set their hands and seals this 25th day of May, A. D. 1899, in duplicate.</p> <p>(Signed) J. D. Kerrison ' (Seal)</p> <p>Witnesses: A. K. Leon (Seal)</p> <p>J. D. Cole. Cromwell Gibbons (Seal)</p> <p>B. W. McAuley. B. F. Manier (Seal).”</p> <p>And the plaintiff says that the said J. Davenport Kerrison, under the terms and provisions of said contract of charter and hiring, then and there delivered said property to said defendants, and defendants received and accepted the same under the terms and provisions of said contract of charter and hiring. And the plaintiff says that defendants did not, at the expiration of one year from the 25th day of May, 1899, return said property or any part thereof to the said J. Davenport Kerrison, or to the plaintiff, but have wholly failed and refused so to do, though return of the same has been often demanded to plaintiff’s damage of five thousand dollars. And the plaintiff claims $5000.00 damages.</p> <p>The defendants' demurred to both counts of the declaration, among the grounds of demurrer to the second are the following: that the contract sued on shows no contractual relation between the plaintiff and defendants, and shows no right of action against the defendants on behalf of the plaintiff.</p> <p>The demurrer was overruled, and this ruling is assigned as error.</p> <p>Eight pleas were filed upon all of which1 issue was joined, a trial was had and a verdict and judgment were entered for the plaintiff against the defendants. From this, judgment a writ of error was sued out from this court.</p> <p>There are eleven assignments of error.</p>

This case was decided by the court En Banc. Writ of error to the Circuit Court of Brevard county. The facts of the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Jackson county. Statement. The defendant sued the plaintiff in error in the Circuit Court of Jackson county in an action for damages for personal injuries received by the plaintiff in coming in contact with the wheels of the defendant's cars. There was verdict and judgment for the plaintiff, to review which the defendant took writ of error.

This case was decided -by Division B. Writ of error to the Circuit Court for Alachua county. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court En Banc.</p> <p>Writ of error to the Circuit Court for Duval county.</p> <p> Statement. </p> <p>The defendant in error sued the plaintiff in error in ejectment in the Circuit Court of Duval county for recovery of several lots of land lying contiguously to each other in the village of South Jacksonville, an un-incorporated community, in said county, containing in the aggregate one acre of ground. The trial was had upon the plea of the general issue, and resulted, after an affirmative charge by the court in favor of the plaintiff, in a -verdict and judgment • for the plaintiff for the recovery of the entire property and for $340 for mesne profits. From which judgment the defendant below, Catherine L. Palmer, sued out writ of error from this court.</p> <p>At the trial the, following undisputed state of facts was developed: That the plaintiff, Paul Palmer, was the son, and the defendant, Catherine, was the widow, of Joseph Palmer, who owned the property for some time prior to his death in May, 1895, and who resided upon it, making it his home for some years prior to and at the time of his death with his wife the said Catherine; that the property consisted of about one acre of land and was not located in an incorporated town, the improvements thereon being the dwelling house of the said Joseph Palmer and an enclosing fence. Joseph Palmer shortly prior to his death executed a last will in which' he devised to his wife, the said Catherine, various other parcels of real estate and certain personal property, and in which he bequeathed to his son, the said Paul, certain choses in action, and by a general clause in the will he devised and bequeathed all the balance of his property, real, personal or mixed, wheresover situated, which he then owned or that he might thereafter acquire and of which he should die seized and possessed, to the said Catherine, his wife, and to the said Paul, his son, share and share alike in fee.</p> <p>This will appointed the widow and son as its executors. It was duly probated, and the widow, Catherine, interposed no dissent thereto within a year after its probate, thereby accepting the valid provisions thereof in her favor. The widow, Catherine, continued to occupy the homestead premises in dispute after her husband’s death until the recovery against her in ejectment herein.</p>

This case was decided by the court En Banc. Writ of error to the Circuit Court for Calhoun county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Volusia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Bradford county. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Calhoun county.</p> <p> Statement. </p> <p>The defendants in error, as plaintiffs below, brought their action of ejectment in the Circuit Court of Calhoun county against the plaintiff in error as defendant below for recovery of a certain tract of land in said county. The trial resulted in a verdict and judgment in favor of plaintiffs, and the defendant ‘seeks its reversal by this .writ of error.</p> <p>There was a plea of not guilty, and a plea upon equitable grounds to the effect that the defendant had about twenty years before purchased the land in dispute from its then owners at an agreed price and had then been put into the possession thereof by such vendors, and that he had ever since been in the undisputed adverse possession thereof as purchaser and owner, and had built upon, cleared and otherwise improved portions thereof and actually resided thefeon, and that he had long ago fully paid the agreed purchase price, and was fully entitled to a deed thereto from his vendors, who had frequently promised and agreed to execute such deed, but that they procrastinated until he threatened legal proceedings to enforce his rights, when, with intent to defeat and defraud him out of his said property, his vendors, conspiring with the plaintiffs who were their relatives, executed to them a deed of conveyance to same while the defendant was in full and peaceable and adverse possession thereof under his former purchase thereof.</p> <p>The undisputed facts adduced at the trial were in substance as follows: That the defendant Smith about the year 1881 or 1882 contracted with one C. McKeown, wife of W. J. McKeown, to buy the land at the agreed price of $100, she being then the owner thereof; that Smith at the time of his purchase went into immediate possession as purchaser, built thereon, cleared portions of it and cultivated it and had continuously remained in possession thereof, making it his home from the time of his purchase up to the time of the trial; that since the sale of the land to Smith, C. McKeown, his vendor, and the former wife of W. J. McKeown, had died, and that after her death, on the twenty-fourth day of January, 1901, W. J. McKeown and Joshua McKeown and his wife as her heirs at law had made a deed of conveyance of the property to the plaintiffs. This is the deed under which alone the plaintiffs claim title, and was executed and delivered while the grantors therein were not in actual possession of the property in dispute, but while such property was in the actual possession of the defendant Smith. There was evidence to the effect that Smith had fully paid to his vendors the agreed purchase price, but there was a conflict of evidence on this point.</p> <p>The court at the conclusion of the evidence, and at the request of the plaintiffs, gave to the jury an affirmative charge instructing them to find in favor of the plaintiffs.</p>

This case was decided by the court En Banc. Writ of error to the Circuit Court for Orange county. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Madison county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Hillsborough county. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division B.</p> <p>Writ of error to the Circuit Court for Jefferson county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division B. Appeal from the Circuit Court for Alachua county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Appealed from the Circuit Court for Columbia county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. This is a case of original jurisdiction. Statement. On May 6th, A. D. 1902, this court rendered a judgment for $20.55 costs against William Atkins in favor of James E. Johnson in a cause wherein James E. Johnson was plaintiff in error and William Atkins as surviving partner was defendant in error (44 Ela. 185, 32 South. Rep. 879). On October 1st, 1903, an execution for said sum was issued by the clerk of this court.

This case was decided by Division B. Appeal from the Circuit Court from Hillsborough county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Marion county. ■ The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Appeal from the Circuit Court for Volusia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from the Circuit Court for Columbia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from Circuit Court for Hernando county. Statement. The appellants filed á bill in the court below for the enforcement of the following instrument, i. e.: “State of Florida, Hernando county.

This case was decided by Division A. This is a case of original jurisdiction. Statement. On November 23rd, 1898, the relator sued out of this court an alternative writ of mandamus directed to the trustees of the Internal Improvement Fund of this State.

This case was decided by Division A. This is a case of original jurisdiction. Statement.

This case was decided by the court En Banc. Appealed from the Circuit Court for Hillsborough county. The facts in the case ^ire stated in the opifiion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Hillsborough county. The facts in the case are stated in the opinion of the ’court.

This case was decided by the court Bn Banc. Appeal from the Circuit Court for Duval county. Statement.

This case was decided by Division B. Appeal from the Circuit Court for Dade county. The facts in the case are stated in the opinion of the court. ,

This case was decided by the court Bn Banc. Appeal from the Circuit Court for Leon county. The facts in the case are stated in the opinion of the court.