Volume 70 — Florida Reports

<p>Original proceedings in -habeas corpus before a Justice of the Supreme Court.</p>

<p>Writ of Error to Criminal Court of Record, Duval County; J. M. Peeler, Judge.</p>

<p>A charge in a murder trial upon self defense that the accused must have “used all reasonable means in his power to avoid the danger and to avert the necessity of killing,” and a charge “that one assaulted on his own premises need not retreat,” do not conflict.</p>

<p>Appeal from Circuit Cou'rt, Leon County; D. A. Simmons, Judge.</p>

<p>In an action of ejectment involving a boundary line where it appears that the line was agreed upon between the parties as a division line between their properties, which had been given to them by their father who himself established the division line between them; that a settlement was made between the parties upon a valuation based upon the two portions into which the dividing line divided the original property; that such line was acquiesced inland recognized by the parties for twenty-five years as the dividing line between their properties and together they ‘erected and maintained a division fence on the said line for nearly that entire period. Held: that such line was binding between the parties as having been established by acquiescence and recognition.</p>

P. Branning, Judge. Statement. On the 9th day of March, 1915, the appellee filed his bill of complaint in equity against the appellant in the Circuit Court of Dade County, alleging and praying therein as follows: “Your orator respectfully represents unto your Honor that on the 5th day of November, ”A. D. 1913, the Richardson-Kellett Company, defendant herein, either being or pretending to- be seized and possessed in fee simple of the following described real property…

<p>Criminal Law — Murder—Continuance—Mistaken Killing of One with Premeditated Design to Kill Another Person is Murder in the First Degree.</p> <p>1. The rule is that trial courts have a broad discretion in granting or denying applications for continuance of causes, and that'their, exercise of this discretion will not be reversed by an appellate court unless it be clearly shown that there has been a palpable abuse of such discretion .to the manifest injury of the party against whom it has been exercised. The rule further requires that applications for continuance in criminal cases shall be more closely and rigidly scanned than in civil causes because of the greater temptation in the criminal case to seek delay.</p> <p>2. Where the affidavit in a criminal cause for a continuance on the ground of the absence of witnesses complies strictly with the requirements of the rule in such applications, but the State in opposition thereto proves conclusively that no such parties as those named in the affidavit as the absent witnesses ■ resided in the county where the crime was committed, and by proof makes out a strong probability that the parties named as. the absent witnesses were not in existence anywhere, but were fictitious persons named as a ruse to secure delay only, the appellate court will not disturb the exercise by the trial court of the broad discretion vested iri him in such cases in denying such application for continuance.</p> <p>3. One who kills one person through mistaken identity, while attempting and intending with premeditated design to kill another person, is guilty of murder ip the first degree, and the indictment in such a case properly alleges that the premeditated design was to effect the death of the person actually slain, since the law transfers the felonious intent in such a case to the actual object of his assault, and the homicide so committed is murder in the first degree.</p> <p>4. Assignments of error that are not argued in the briefs of counsel before an appellate court will be treated as abandoned.</p>

<p>1. Where provisions of a statute are so mutually connected with and dependant on each .other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would not pass the residue independently, then if some parts are unconstitu- . tional, all the provisions which are thus dependent must fall with them.</p> <p>t</p> <p>2. If any of the provisions of an act that are held to be illegal induced to any appreciable extent its passage, the entire act fails in view of the interdependence of the provisions.</p> <p>3. The provision of Section i of Chapter 6899, attempting to authorize more than one Circuit Judge for one Judicial Circuit, having been held to be in conflict with the constitution . and inoperative, and the provisions of such chapter being interdependent and the inoperative provision having* manifestly been an inducement for the enactment of the other provisions, the entire act is unconstitutional and inoperative.</p>

This is an original proceeding in Quo Warranto. Judgment of ouster entered. Cockrell and Ellis, JJ., dissent. Statement. The following is the information filed herein: “In the Supreme Court of the State of Florida.

<p>Where the parties complainant in an equity proceeding have a common interest in the subject of the litigation and have some relation to each other growing out of the common interest, and the allegations are of a single distinct equity as to which a“ specific relief is prayed against some of the defendants, the bill of complaint is not multifarious.</p>

<p>Appeal from Circuit Court, Duval County; D. A> Simmons, Judge.</p>

<p>Appeal from the Circuit Court, St. Johns County; George Couper Gibbs, Judge.</p>

<p>1. Where a letter written by the witness and put in evidence indicates a hostile attitude of the witness to the defendant, it was in this case harmless, if error, to exclude a question . asked the witness as to whether she was unfriendly to the accused.</p> <p>2. Requested instructions may properly be refused if they are incorrect or are covered by charges given.</p> <p>.5. Where the record proper shows that the defendant “on being arraigned plead not guilty,” and affidavits of the jurors state that the indictment was read when the defendant was arraigned, a ground of a motion for new trial that the indictment was not read to the defendant may properly be overruled even though the defendant made an affidavit that the indictment was not read.</p> <p>4. The testimony is ample to sustain the verdict.</p>

<p>x. Under the provision of Section 5 of Article VIII of the constitution, that powers and duties of county commissioners “shall be prescribed by law,” the authority of such officials is only such as may be conferred by statutory regulations.</p> <p>2. When authority to act appears, a wide discretion in acting should be accorded to county commissioners, where no question of fraud is presented.</p> <p>3. The courts will not control the discretionary acts of county commissioners done within their statutory powers where fraud or abuse of discretion is not clearly shown.</p> <p>4. The power given to the county commissioners by the statute to designate a newspaper for the publication of the delinquent tax lists implies discretion, and includes the power to reconsider and to re-designate, when private rights are not directly injured, if the interests of the public require it; and the action of such officers is presumed to be bona fide for the public good.</p> <p>5. Where no fraud or illegality is alleged, mere allegations that the county commissioners have reconsidered a designation of a newspaper and have without authority made another designation of a different newspaper for the publication of the delinquent tax lists of the county, that the first newspaper is of greater circulation than the latter, and that such action will subject the taxpayers of the county to the expense of compensating the first newspaper for the labor expended in setting into type and forms the “list or a part thereof,” with no definite allegation showing liability of the county, do not show an abuse of authority or discretion on the part of the county commissioners.</p>

Reversed because of refusal to give requested instruction on murder in the second degree, to which Taylor, C. J., dissents. Writ of error to Circuit Court, Volusia County; Jas. W. Perkins, Judge.

<p>Chancery Practice — Counsel Fees When Allowed.</p> <p>Where the counsel has been employed to obtain or create a fund for the joint benefit of both parties, his fees, if he prevails, not if he loses,, may be paid o.ut of the funds; but where the interests of the parties are adverse only the legal taxable costs can be allowed.</p>

<p>1. It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. This principle applies to all bills in equity, but is especially applicable to bills seeking an injunction, the rule being that the title or interest of the complainant and the facts upos which he predicates his prayer for such relief must be stated positively, with clearness and certainty. The bill must state facts and not opinions or legal conclusions.</p> <p>2. While equity will reform a written instrument when by a mistake it does not contain the true agreement of the parties, yet it will only do so when the mistake is plain and the proof full and satisfactory. The writing should be deemed to be the sole expositor of the intention of the parties until the contrary is established beyond a reasonable doubt.</p> <p>3. The allegata and probata must reciprocally meet and correspond, the issues being made by the pleadings to which the proof must be confined. If the proof must be full and satisfactory in order to warrant a court of equity in decreeing the reformation of a written instrument, and such proof must correspond to and with the allegations upon which such reformation is sought, it is an obvious corrollary that such allegations must likewise be full and satisfactory.</p> <p>4. A court of equity cannot grant relief when the complainant’s own showing in his bill demonstrates a want of equity in his prayer.</p>

<p>1. Where an objection has been sustained to a question but subsequently during the trial the question was answered in effect by the witness, even if there was error in the previous ruling, it was cured by the subsequent admission of the testimony so excluded.</p> <p>2. In a criminal prosecution, as in the trial of civil causes, the examination and cross-examination of witnesses is largely within the control of the trial judge, and he will not be held in error in overruling objections interposed by the defendant to questions propounded by the State to a witness called in rebuttal on the ground that such questions tend to prove something which has already been proven by such witness, unless it is clearly made to appear that there has been an abuse of the judicial discretion vested in the trial judge.</p> <p>3. Where an accused on trial voluntarily offers himself as a 'witness on his own behalf, he thereby voluntarily subjects himself to any legitimate cross-examination, whether such cross-examination tends to criminate him or not.</p> <p>4. It is in the discretion of the trial court to permit the introduction of evidence by the State, after the conclusion of the defendant’s case, though the same may not be strictly in rebuttal, if it was admissible in the main case, and unless such discretion is abused to the detriment of the defendant, it will not be ground for reversal.</p> <p>5. Requested instructions, though announcing correct principles of law applicable to the case, are properly refused where such principles are fully covered in other instructions given at Ihe trial, even though couched in different language.</p>

<p>1. Assignments of error predicated upon alleged facts and rulings that are not disclosed by the record cannot be considered by an appellate court.</p> <p>2. An assignment of error based upon the refusal of the court to give a requested charge can not be considered by the appellate court where the transcript does not show except by the motion for a new trial that such a charge was requested, as the motion is not self-supporting.</p> <p>3. Where a requested charge is refused it must be set out in the bill of exceptions with the refusal to give it and the exception taken thereto. The refusal to give a requested charge should be excepted to at the refusal and can not be excepted to in a motion for a new trial.</p> <p>4. Where the information charges the larceny of a heifer and the testimony shows that the animal stolen was a female “calf about a year and a half old and still sucking,” this does not constitute a fatal variance, especially'where the trial court did not find it prejudicial to the defendants or material to their defense.</p> <p>5. Under Section 3299 of the General Statutes of Florida, the penalty thereby prescribed follows the larceny of any of the domestic animals therein named, regardless of their value. In such cases where the grade of the offense or the penalty prescribed therefor is not measured by or dependent upon the value, of the property stolen, but is determined entirely by the class or species of such property, it is not necessary in an indictment charging its larceny to allege any value; neither is it necessary to prove any value.</p> <p>6. Words in an indictment, that are not necessary or essential to describe or charge the offense, and that 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 he rejected as surplusage.</p> <p>7. In determining the correctness of charges and instructions, they should be considered as a whole; and if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions, which, standing alone, might be misleading, must fail.</p>

<p>1. An appeal from an interlocutory order should be taken within six months after the entry of the order from which the appeal was taken.</p> <p>2. Upon a motion to dissolve an injunction, the answer of a defendant corporation which is not under the seal of the corporation will not be considered as an answer, and if not under oath will not be considered as an affidavit.</p> <p>3. An injunction improperly granted upon the showing made by the bill of complaint should be dissolved on motion of the defendant.</p> <p>4. Where the basis for injunctional relief is irreparable injury, the mere allegation of such injury to the complainant is not sufficient; facts should be alleged to show the exact nature of the injury.</p> <p>5. A bill to remove a cloud on title which fails to clearly and accurately show the validity of complainant’s title, or the invalidity of the defendant’s title to the lands involved, is materially defective and shows no ground for equitable aid by inj unction.</p>

<p>Writ of Error to Circuit Court, Franklin County; E. C. Love, Judge.</p>

<p>Writ of Error to Circuit Court, Volusia County; Jas. W. Perkins, Judge.</p>

<p>1. The State may not impeach its own witness who gives no adverse testimony by reading excerpts from his testimony on a former hearing.</p> <p>2. Where the question for the jury is the lawfulness of the homicide, the court should not assume in his charge that it was unlawful.</p>

<p>Appeal from Circuit Court, Lee County; F. A. Whitney, Judge.</p> <p> Statement. </p> <p>Weber Brothers Shoe Company, a corporation, filed its bill in equity against Rose Nadel and her husband, A. G. Nadel, for the purpose of subjecting certain real property of Rose Nadel owned by her as her separate statutory property, and described in the bill, and certain personal property alleged to be owned by Rose Nadel and C. L. Johnson in a mercantile business conducted by them under the name of the “Quality Shop,” at Fort Myers, Florida, to the payment of a debt alleged to be due to the complainant corporation for goods shipped by it to the “Quality Shop,” which the bill alleges was the “firm name and style” of a business in which Rose Nadel was jointly interested with “one C. L. Johnson,” who was not made a party to the bill.</p> <p>The bill alleges that at the time it was filed, the “Quality Shop” had a stock of goods of the estimated value of five thousand dollars, and that Rose Nadel had an undivided half interest therein, and that such interest was under the control of her husband, A. G. Nadel, who was her agent in fact and in law. It is alleged that in February, 1914, Rose Nadel, through her husband as her agent in fact and in law, contracted with the complainant for the purchase of the goods, which were shipped to her and received and accepted by the Quality Shop-, and that the complainant shipped the goods as stated, relying on the promise of Rose Nadel, through her husband, A. G. Nadel to pay for the same. A list of the goods sold by the complainant is attached to the Bill of Complaint as Exhibit “A” and made a part of the bill. This list shows that the goods were sold by the “Weber Brothers Shoe Company” to “The Quality Shop, Fort Myers, Fla.” The bill alleges specifically that Rose Nadel is a married woman and interested in the said business, “The Quality Shop,” tog-ether with one C. L. Johnson, and with her husband, A. G. Nadel, as “Agent and Manager of said business.”</p> <p>In another paragraph of the bill it is alleged that such “Goods and chattels were purchased by the said Rose Nadel for the use and sale in the said business known as the Quality Shop, and that such goods were sold to her in a good faith and on her credit and her representation as to the ownership of the said property both real and personal” and that the “goods were shipped to the said Rose Nadel operating under the firm name and style of The Quality Shop, located in the City of Fort Myers, Lee County, Florida, and were received by the said defendants and they then and there promised” the complainant “to pay for the same.”</p> <p>The bill prays for an accounting to ascertain the amount due to complainant by Rose Nadel trading under the name of the Quality Shop', that such amount be paid by Rose Nadel within a short time to' be named by-the court, and that in default of the pajunent of such indebtedness by her, that her interest in the personal property of the business as well as her real property be sold or the rents, issues and profits thereof sequestrated to satisfy the complainant’s claim.</p> <p>About four months after the filing of the original bill, the complainant filed its supplemental bill of complaint against the defendants, in which it was alleged that since the filing of the original bill, there had been a “dissolution of the partnership relations existing between the defenclant Rose Nadel” and “C. L. Johnson, and that the partnership property” had been divided between them, and that Rose Nadel had in her possession and control “by and under and through the management of her husband A. G. Nadel a certain stock of shoes, hats, shirts,” etc., and that she held the goods free from any claims of C. L. Johnson, her former partner in the business then known as The Quality Shop. It was further alleged that the partnership was dissolved by mutual consent on the 1st day of January, 1915, and that C. L. Johnson had agreed to settle the indebtedness of the former firm, but the complainant had not agreed to, nor accepted such offer, nor released Rose Nadel, nor the property from the payment of the debt.- The bill prays that the “said personal property consisting of the stock of goods,” located in a certain building in Fort Myers, may be subjected to the payment of the complainant’s claim. It is alleged in the original bill that the real estate as well as the interest of Rose Nadel in the mercantile business was her separate statutory property, and in the supplemental bill that the personal property consisting of part of the merchandise stock of the Quality Shop which came to her upon the dissolution of the partnership is her separate statutory property.</p> <p>The defendants interposed a demurrer to the original and supplemental bills, on the grounds, among others, that the bills were without equity, and set forth no facts which entitled the complainant to the relief sought; that it was not alleged that the credit was given solely to the defendant Rose Nadel upon the faith of her “separate statutory estate;” that the bills sought to subject a married woman’s separate statutory property to the debts of a partnership business; that the supplemental bill was bad because the original bill states no cause that could be sustained in equity, and that the suplemental bill failed to set forth any contract on the part of the married woman, and alleged that the credit was given to the business.</p> <p>The demurrer was overruled. Exceptions were filed to certain matters contained in the supplemental bill, relating to the property which Rose Nadel had in her possession after the dissolution of the partnership, and the allegation that it was property purchased by Rose Nadel through her husband as manager and her agent in the mercantile business formerly known as The Quality Shop, and that some of which was the very property that “the defendant” purchased from the complainant, etc. The exceptions were overruled. From these orders Rose Nadel and her husband A. G. Nadel appealed to this court.'</p>

<p>Petition for rehearing denied Dec. 21, 1915.</p> <p>Writ of error to Circuit Court, Columbia County; M. F. Horne, Judge.</p>

<p>Petition for rehearing denied Dec. 21, 1915.</p> <p>Writ of error to Circuit Court, Marion County; W. S. Bullock, Judge.</p>

<p>1. A plea by one sued on a note as a member of a partnership, merely denying that he made or authorized the making of the note, is bad as not responsive to the issue.</p> <p>2. Errors assigned upon supposed charges not presented by the record will not be considered.</p> <p>3. A judgment upon a declaration against H. & B. composing a partnership, awarding recovery from “the defendant, the said H. & B.” is defective.</p>

<p>Writ of Error to Circuit Court, DeSoto County; J. W. Burton, Referee.</p>

<p>1. A confession voluntarily made by the defendant while under arrest to the officer having him in custody, is not rendered inadmissible merely because made to the officer who arrested him or has him in custody. Such a confession is extra-judicial and distinguished from the statements made by an accused person on oath before a coroner, Grand Jury or Committing Magistrate investigating the case.</p> <p>2. Upon the trial of a person for intending to procure miscarriage of a woman, although it appears that the name of the woman upon whom the abortion was intended to be performed, as alleged in the information, was a fictitious one, but that she was known by such name to those with whom she had dealings and-to whom she had gone for relief and treatment, there is no variance.</p> <p>j. The authority of the trial court without notice to plaintiff in error upon a nunc pro tunc order to correct the minutes of the court to show the presence of the accused during the trial, after writ of error has issued, is questioned.</p>

<p>'A homesteader may obtain relief in equity against a judgment against himself, apparently a lien that effects the salability of the homstead.</p>

<p>The Court may postpone to the final hearing an application by one claiming a homestead exemption in a judgment in his favor as to which a writ of garnishment has issued and as to a claim for personal property not actually levied upon.</p>

<p>Where the evidence wholly fails to support a verdict for the plaintiff, a judgment entered thereon for the plaintiff will be reversed.</p>

<p>Writ of Error to Circuit Court, Jackson County; D. J. Jones, Judge.</p>

<p>1. While the provision in Section 16 of Article 3 of the Constitution is mandatory and of as much binding force upon the Legislature and upon the courts as any other provision in that instrument and while it is the duty of the courts to declare legislative enactments void, when questioned, that are clearly non-compliant with its requirements, still the courts in construing the acts of the legislative branch of the government should always apply a liberal rule, and refuse to declare its, action void, except in clear cases that are free from every reasonable doubt.</p> <p>2. It is a sufficient compliance with Section 16 of Article 3 of the Constitution if the subject is expressed in the title to the act, the matters properly connected with such subject not being required to be expressed in the title.</p> <p>3. If the title to the act fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill it is all that is necessary. The title need not be an index to the contents of the bill or act.</p> <p>4. Under the title of “An Act to regulate the sale or furnishing of intoxicating liquors, wines or beer, and prescribing a penalty for the violation of certain of its provisions, and repealing laws in conflict herewith” the legislature may phohibit the sale of such liquors, wines or beer, in counties where the sale of the same is allowed by law, in less quantities than one-half of a pint, and may further prohibit such sale, unless such liquors, wines or beer are contained in securely sealed receptacles.</p> <p>' 5. Under the title of an “Act to regulate the sale or furnishing of intoxicating liquors, wines or beer, and prescribing a penalty for the violation of certain of its provisions, and repealing laws in conflict herewith,” the legislature may make the following section a portion of such act, without violating the provisions of Section 16 of Article III of the State Constitution: “Sec. 7. That no dealer in intoxicating liquors, wines or beer shall himself drink, consume or give away any intoxicating liquor, wine or beer in any quantity on the premises where such liquor, wine or beer is sold, nor shall he permit or suffer any assistant, servant, employee, purchaser or any person whomsoever to drink, consume or give away any intoxicating liquor, wine or beer on such premises, nor shall he provide any other premises with the intent to defeat the policy of this act.”</p> <p>6. Sections 1 and 7 of Chapter 6860 of the Laws of the State of Florida of 1915, being entitled “An Act to regulate the sale or furnishing of intoxicating liquors, wines or beer, and prescribing a penalty for the violation of certain of its provisions, and repealing laws in conflict herewith,” are not violative of any of the provisions of Sections one and twelve of the Declaration of Rights of the Constitution of the State of Florida or of Article XIX of such constitution.</p> <p>7. Article XIX of the Constitution of the State of Florida is to be construed in connection with all the other provisions of such constitution.</p> <p>8. Article XIX of the Constitution of the State of Florida does not undertake to deal with regulating the sale of intoxicating liquors, under the police power which the legislature has the authority to exercise, but only to give the qualified voters in any county the right to determine at an election called for that purpose whether or not the sale of such liquors shall be absolutely prohibited in such county. Where the sale of intoxicating liquors is permitted or authorized in a county it is still subject to such regulations under the police power as the legislature may prescribe, short of actual or practical prohibition.</p> <p>g. The reasonableness or justice of a deliberate act of the Legislature, the wisdom or folly thereof, the policy or motives prompting it, so long as the act does not contravene some portion of the organic law, are all matters for legislative consideration and are not subject to judicial control. The courts are bound to uphold a statute, unless it is clearly made to appear bej'ond a reasonable doubt that it is unconstitutional.</p>

<p>1. In a prosecution for homicide, narrations of what the defendant had said to another person as to his being notified that the deceased had threatened him, are not admissible to prove that the defendant knew of recent threats against him made by the deceased, or to prove the defendant’s state of mind when he saw the deceased just before the homicide.</p> <p>2. Where in a homicide trial a defendant’s testimony indicates that he may have been needlessly alarmed by the appearance of the deceased at the time of the tragedy with a gun which he was acustomed to carry, it is not material error, in a charge otherwise unobjectionable, to state that “men do not hold their lives at the mercy of unreasonable fears or excessive cowardice of others.”</p> <p>3. When otherwise unobjectionable, a charge that the defendant must have “used all reasonable means in his power consistent with his own safety, to avoid the danger and avert the necessity of killing” the deceased, is applicable where both the deceased and the defendant were at a place where they had a right to be, the reasonableness of the means used being for the jury to determine.</p> <p>4. Where charges given cover a subject other charges on the same subject may be refused.</p> <p>5. Where the evidence amply supports the verdict, it will not be disturbed.</p>

<p>Appealed from Circuit Court, DeSoto- County; F. A. Whitney, Judge.</p>

<p>When the defendant has the legal title and the plaintiff’s claim is based entirely upon the equitable doctrine of election and conversion, he may not recover in ejectment.</p>

<p>Appeal from Circuit Court, Pinellas County; F. M. Robles, Judge.</p>

<p>Writ of Error to Circuit Court, Marion County; W. S. Bullock, Judge.</p>

<p>Writ of Error to Circuit Court, Volusia County; Jas. W. Perkins, Judge.</p>

<p>Appeal from Circuit Court, Dade County; H. P. Branning, Judge.</p>

<p>1. In the trial of an indictment for murder where the State in rebuttal offers evidence of an immaterial circumstance, which is obj ected to by the defendant, and such circumstance neither contradicts, qualifies, limits nor explains any matter brought out by the defendant, but its admission by the court is calculated to impart to it an importance and significance which it should not have, to the defendant’s injury, the admission of such evidence is reversible error.</p> <p>2. Section 3989 General Statutes of 1906 providing for a view of the premises by the jury is not obligatory upon the court, who may order the view to be taken by the jury as in the court’s discretion the necessity of the trial requires.</p> <p>3. An involuntary confession of the defendant is inadmissible as evidence against him, even though he takes the stand as a witness in his own behalf and the involuntary confession is sought to be used for the purpose of impeaching him as a witness.</p> <p>4. Testimony which is admitted without objection although irrelevant and immaterial at the time it is, offered and would be excluded upon proper objection being made, may when all the testimony in the case is in, become relevant as an explanation of other testimony, or as rebuttal evidence, in which case a motion to strike it on the ground of irrelevancy should be denied.</p> <p>5. A verdict signed by a juror as foreman with the initials of his Christian name and his surname in full instead of an abbreviation of his first name and surname in full as it appears in the panel, does not vitiate the verdict.</p> <p>6. Where one assignment of error attacks the entire general charge of the court, the assignment will not be considered by the appellate court except to ascertain if any one of the instructions given was properly given, and if the appellate court finds one of such instructions to have been without error the assignment will not be sustained.</p> <p>7. The same rule applies where several instructions have been requested and refused and one assignment of error attacks en masse the court’s refusal to give such instructions. The appellate court will not consider such assignment of error except to ascertain whether one of such instructions was properly refused, and so finding, will not sustain the assignment.</p>

<p>1. A court will not listen to an objection made to the constitutionality of an act by a party whose right it does not affect and who has therefore no interest in defeating it.</p> <p>2. A person who does not belong to a class alleged to be unlawfully discriminated against by a statute, cannot in judicial proceedings be heard to assail the constitutionality of the statute as it affects the class.</p> <p>3. One cannot raise an objection to the constitutionality of a part of a statute, unless his rights are in some way injuriously affected thereby, or unless the unconstitutional feature renders the entire act void or renders the portion complained of inoperative.</p> <p>4. The constitutionality of a provision of a statute cannot be tested by a party whose rights or duties are not affected by it, unless the provision is of such a nature that it renders invalid a provision of the statute that does affect the party’s rights or duties.</p> <p>S- It is the duty of the courts to enforce valid provisions of a statute; but a statutory provision that is clearly in conflict with organic law should not be enforced.</p> <p>6. If a duly enacted statute contains provisions that are invalid because in conflict with organic law, and such invalid portions may be severed, and the remainder of the statute may then be made effective for the purpose designed, and will not cause results not intended by the Legislature, and it does not appear that the statute would not have been enacted without the invalid portions, the invalid portions of the Act should be disregarded and the valid portions enforced if it can be •done to effectuate the legislative intent.</p> <p>7. It is presumed that the law-making power intended a valid, constitutional enactment.</p> <p>8. Only the valid legislative intent becomes the law to be enforced by the courts.</p> <p>9. The legislature is presumed to act within its powers, and its law-making discretion within its powers is not subject to review by the courts.</p> <p>10. The State has a wide discretionary power in imposing license taxes, apd unless there can be no substantial basis for discriminations made in classifications and in fixing the amount of license taxes, so that such discrimination must be regarded as purely arbitrary and unreasonable under every conceivable condition in practical affairs, the courts will not interfere with legislative regulations of such matters.</p> <p>11. The burden is on one who complains that he has been denied the equal protection of the laws to sustain the complaint.</p> <p>12. The power and discretion of the legislature to control and regulate the subject of hunting game is not limited by the organic law, and the subject regulated may be as restricted in manner and extent as the legislature deems advisable; but the regulations should affect alike all persons similarly, situated and conditioned with reference to the particular regulations.</p> <p>13. The discretion of the legislature in classifying those who are to be affected by a regulation for the protection of game, will not be disturbed by the courts where the classification has some just, fair and practical basis in real differences with reference to the subject regulated; and all doubts will be #;■' resolved in favor of the validity of a statute.</p> <p>14. -The provisions of Chapter 6969 requiring residents of the State to pay a license tax of three dollars to hunt game in each county of the State other than the county of residence, and requiring residents of a county to pay only one dollar as a license tax for hunting game in such county, are not on their face purely arbitrary and unlawful.</p> <p>15. Sections 26, 27, 28, 29, 30, 31 and 32 of Chapter 6969 Acts of 1915 must be eliminated as clearly violative of the provisions of the constitution relative to the appointment of officers and fixing their compensation, but such elimination will not render the entire act inoperative.</p>

<p>1. Where general public interests are directly involved in an application for a writ of habeas corpus, the Supreme' Court will within its discretion issue the writ that the State’s interests may be conserved.</p> <p>2. The provisions of Chapter 6877 Acts of 1915, requiring dealers in fish, and owners, &c., of boats used in fishing to procure a license and to pay a tax therefor, are germane to and properly connected with the subject of protecting and regulating the salt water fishing industry as expressed in the title of the act. Considered with reference to the body of the act, the title is not misleading.</p> <p>3. After the United States acquired by treaty of cession from Spain the territory known as East and West Florida, such territory was held subject to the constitution and laws of the United States. The lands under navigable waters including the shores were held by the United States for the benefiPof the whole people to go to the future Stale for the use of the whole people of the State.</p> <p>4. The admission of the State of Florida “into the Union on equal footing with the original States, in all respects whatsoever” gave to the State of Florida all rights and powers as to property and sovereignty possessed by the original States of the Union, except such as were withheld by ¡he act admitting the State.</p> <p>5. The rights of the people of the States in the navigable waters and the lands thereunder, including the shore or space between ordinary high and low water marks, relate to navigation, commerce, fishing, bathing, and other easements allowed by law. These rights are designed to promote the general welfare and are subject to lawful regulation by the States, and such regulation is subordinate to the powers of Congress as to interstate commerce, navigation, post roads, etc., and to the constitutional guaranties of private property rights.</p> <p>6. Under the laws of this State, the public waters and the fisK therein are held by the State for the benefit of the people of the State, subject to such regulations of the use thereof as the law-making power may provide.</p> <p>7. The right of individuals to fish in the public waters of the State is subject to State regulation for the general welfare. This regulation may be of any character and to any extent that does not in effect destroy the right.</p> <p>8. A legislative imposition of a license tax and. other incidental regulations upon the persons who deal in fish and those who desire to fish, and upon boats used in fishing, is a proper exercise of the regulating sovereign police power of the State, and such power is limited only by the provisions of the State and Federal Constitutions.</p> <p>9. Such of the provisions of Section 14, Chapter 6877, as require licenses to be taken out for the use of boats in fishing in the salt waters of the State, and making tlie license tax to depend upon the size of the boat, do not in effect constitute a “duty of tonnage” in violation of the Federal Constitution. The tax is not upon vessels or boats engaged in commerce to or from a port, but upon boats used in fishing in the waters of the State.</p> <p>10. As the right of the people of the State to fish in the public waters of the State is subject to legislative regulation for the public welfare, lawful regulations do not deny “rights retained by the people” within the meaning of section 24 of the Declaration of Rights of the State Constitution.</p> <p>11. The provisions of section 14, Chapter 6877, requiring the Shell Fish Commissioner to collect all license taxes under the act, does not violate the constitution.</p> <p>12. The provision of section 22, Chapter 6877, Acts of 1915, that the State Comptroller shall issue a warrant drawn on the State Treasury to pay accounts, claims or bills approved by ■ the Shell Fish Commissioner, does not deprive the Comptroller of his constitutional right and duty to “examine, audit, adjust and settle the accounts of all officers of the State.”</p> <p>13. The policy, the wisdom and the economy of a statute are not judicial questions when the act does not violate organic law.</p> <p>14. Where a petitioner claims a release on the ground that the statute under which he is held is unconstitutional, he will be remanded if the act is not invalid.</p>

<p>Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge.</p>

<p>x. An information based upon Section 3476 of the General Statutes of Florida, charging the defendant with an attempt to bribe a deputy sheriff of Dade County to permit the defendant “to sell liquors unlawfully in Dade County, Florida, without interference from” such officer, is fatally defective in that it fails to allege that the defendant had attempted to bribe an official to permit the defendant to sell “spirituous, vinous or malt liquors in any county or precinct which has voted against the sale of such liquors, under the provisions of Article XIX of the Constitution of the State of Florida,” without interference from such officer.</p> <p>2. An indictment or information for bribery or attempted bribery must allege that something of value was given, promised, or received, though it is not necessary to insert a description of the thing offered, all that is essential being an allegation that it was of value. An allegation that “a certain gift or gratuity, to-wit, money,” was offered, without alleging that the money was of value, is insufficient.</p> <p>3. While it is the declared policy of the Legislature, as well as of this court, to uphold indictments and informations whenever there has been a substantial compliance therein with the statutory requirements, this relates to matters of form, and not of substance.</p>

<p>1. While the findings and conclusions of a chancellor, where the evidence is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous.</p> <p>2. In equity, as well as at law, every presumption is in favor of the correctness of the rulings of the trial judge, and a final decree rendered by him, based largely or solely upon questions of fact, will not be reversed, unless the evidence clearly shows it to be erroneous.</p> <p>3. Where the testimony is conflicting but there is evidence to support-the finding of the chancellor, the decree will not be reversed on the evidence.</p> <p>4. Where a bill in equity alleges that the complainants are seized and possessed of certain described lands and it is sought to restrain the defendant from trespassing upon such lands, and the defendant’s answer denies such seizin and possession by the complainants and other material allegations in the bill, it is incumbent upon the complainants to establish their title ,to the lands and their right to relief by competent evidence, and where at the final 'hearing upon the pleadings and proofs the Circuit Judge renders a final decree in favor of the defendant and dismisses the bill, stating in such decree that he was of the opinion that “the complainants failed to prove such title or right in them as justified an injunction against the acts alleged in the bill sought to be done by the defendant,” an appellate court will not reverse such decree, unless such findings by the Circuit Judge are clearly shown to be erroneous.</p>

<p>Writ of Error to Circuit Court, Duval County; D. A. Simmons, Judge.</p>

<p>Appeal from Circuit Court, Citrus County; W. S. Bullock, Judge.</p>

<p>A bona fide assertion of a claim for land lying in any county gives the Circuit Court sitting in that county, jurisdiction independent of the resdence of the defendant, even though the claim embraces lands lying in other counties.</p>

<p>Writ of Error to .Circuit Court, Dade County; Geo. Couper Gibbs, Judge.</p>

<p>The statutes changing the rule of evidence as to the burden of proof and making contributory negligence a partial defence, confined to railroad companies, are applicable only to injuries caused by the running of locomotives or cars or other machinery by employees or servants engaged in that service, and will not be extended to apply to injuries done in the baggage room by improperly piling up trunks.</p>

<p>Writ of Error to Circuit Court, Seminole County; Jas. W. Perkins, Judge.</p>

<p>1. Where an insurance company has filed a bill of interpleader against two defendants for the purpose of having determined which of the two defendants is entitled to the proceeds of a certain life insurance policy and during the taking of the testimony therein an agreement was filed before the special master in chancery hy the two defendants to the effect that, in the event it should be determined that the complainant could maintain its bill of interpleader, each defendant reserved the right to offer further testimony, and the appellate court, upon an appeal hy the complainant from a final decree dismissing the bill, has reversed such- decree and held that the allegations of the bill of complaint were sufficient for the purposes of an interpleader, it is error for the Circuit Judge to deny the motion of one of the defendants to refer the cause back to the special master for the taking of further testimony therein by the defendants, in accordance with such agreement, and to proceed to render a final decree.</p> <p>2. The matter of extending the time for the taking of testimony in an equity suit is for the court below to decide, 'resting within the sound judicial discretion of such court, and ordinarily the determination" of this question will not be disturbed by an appellate court, yet such ruling is reviewable on appeal, and where it is plainly made to appear that there has been an abuse of this judicial dsicretion, it is the duty of an appellate court to interpose and correct the same.</p>

<p>1. Consent by an heir to the sale of a business block may with other circumstances, furnish a sufficient consideration to another heir to support his promise to convey his undivided fifth interest in the home place to an only sister, who had at the time peculiar equities therein.</p> <p>2. An informal execution of a deed may be a sufficient writing to satisfy the statute of frauds in the matter of contracts to convey realty.</p>

<p>1. Section 2841 General Statutes of 1906, prescribing the speed of trains passing through any of the traveled streets of a city applies only to the traveled streets of a city upon and through which the track of the railroad is located.</p> <p>2. A charge to the jury which has no application to the evidence adduced in the case and- is misleading in character as to the duties resting upon the defendant to the latter’s injury constitutes reversible error.</p> <p>3. In a suit against a railroad company for damages for personal injuries sustained in attempting to cross a railroad track at a street crossing, where the evidence affirmatively shows that the plaintiff failed to exercise that degree of prudence which the known risks required, but negligently rode a motor-cycle upon the railroad track in front of an approaching train, the speed of the train cannot be considered the proximate cause of the injury.</p>

<p>Appeal from Circuit Court, Walton County; J. Em-met Wolfe, Judge.</p>

<p>Writ of Error to Circuit Court, Hillsborough County; F. M. Robles, Judge, 1</p>

<p>Appeal from Circuit Court, 'Orange County; Jas. W. Perkins, Judge.</p>

<p>1. While the title of an act is by the constitution required to briefly express the subject of the enactment, it need, hot state matters properly connected with such subject that are embraced in the body of the law; and the language used in expressing the subject of the enactment is within the legislative discretion.</p> <p>2. If the language of the title considered with reference to the legislative intent as shown by the purpose and object of the act, may by any fair intendment cover the subject of the act, the courts will not because of an asserted defective title refuse to give effect to any matter contained in the body of the enactment that is germane to or properly connected with the subject of the law, where the title is not so worded as to mislead an ordinary mind as to the real purpose and scope of the particular enactment.</p> <p>3. A wide latitude must of necessity be accorded to the legislature in its enactments of law; and it must be a plain case of violating the requirements of the organic law as to titles of acts before the courts will nullify statutes or portions thereof as not being within the purpose and scope of the subject as expressed in the title and of “matter properly connected therewith.”</p> <p>4. If the title of an act fairly gives notice of the subject of the act so as to reasonably lead to an inquiry into the body thereof, it is all that is necessary. The title, need not be an index to the contents of the act.</p> <p>5. It cannot be said beyond a reasonable doubt that a provision requiring a license for taking oysters from the salt waters of the State may not fairly be included in or properly connected with the subject expressed in the title of Chapter 6877 as “An Act to protect and regulate the salt water fishing industry of the State of Florida.”</p> <p>6. The provision of Chapter 6877 requiring an alien or non-resident to pay a license tax of ten dollars per annum before they can “engage in taking fish or oysters from the salt waters of this State for any purpose other than his own individual use,” applies to aliens or non-residents of the State who “engage in taking fish or oysters” on their own account, not to laborers who are employed to take fish or oysters for their employers. As so construed and applied the statutory provision does not violate organic or treaty rights.</p> <p>7. The State may without denying “to any person within its jurisdiction the equal protection of the laws,” justly discriminate in favor of its citizens in regulating the taking for private use of the common property in fish and oysters found in the public waters of the State, where such regulations have a fair relation to and are suited to conserve the common rights which the citizens of the State have in such fish and oysters as against aliens and non-residents of the State.</p> <p>8. The equal right of all persons who reside in a State whether ■ citizens or aliens to labor therein does not include an equal right of an alien to participate in the common property and privileges that are peculiar to citizens.</p> <p>9. Chapter 6877 does not purport to discriminate against aliens and non-residents with reference to private property rights or the right to labor or to deal in fish and oysters after they lawfully become private property.</p> <p>io. The provision of section 17 Article V of the constitution that the County Judge “shall issue all licenses required by law to be issued in the county,” is not violated by the provision of Chapter 6877 requiring the Commissioner of Agriculture to issue licenses for fishing privileges in the public waters of the State.</p>

<p>Writ of Error to Court of Record, Escambia County ; Kirke Monroe, Judge.</p>

<p>1. Where in the course of transportation goods are injured by an unprecedented flood and there is no negligence on the part of the common carrier in taking care of the goods or otherwise, the loss is attributable to the flood as an Act of God and the carrier is not liable.</p> <p>2. Whether a common carrier is liable for injury to goods, where, after being negligently delayed in transit, the goods, while still in transit, are injured by an act of God, such as an, unprecedented flood, depends upon whether the negligent delay of the carrier has a proximate causal relation or a mere remote or casual relation to the subsequent injury.</p> <p>3. A merely negligent delay in transporting goods, which delay causes the goods to be at a point in transit where they are injured or destroyed by an unprecedented flood that could not ' have been foreseen at the time of the delay, does not render the carrier liable for the direct consequences of the flood upon the goods, if there be no malconduct by the carrier, and negligence of the carrier in providing reasonably safe and ade-' quate facilities for and attention to the safety of the goods does not directly contribute to the injury even though the goods would not have been at the point where they were injured, and would have escaped the flood but for the negligent delay of the carrier at a time when the flood could not have been foreseen. Such an injury is not an ordinary natural sequence of the delay.</p>

<p>Writ of Error to Circuit Court, Suwannee County, M. F. Horne, Judge.</p>

<p>.Appeal from Circuit Court, Seminole County;- Jas. W. Perkins, Judge.</p>

<p>Where the owner of land has it surveyed, mapped and platted showing subdivisions thereof, with spaces for intervening streets or other highways between the subdivisions clearly indicated upon the map or plat,- and conveyances in fee of the subdivisions are made with reference to such map or plat, the owner thereby evinces an intention to dedicate an easement in the streets or other highways to the public use as such, the title to the land under the street remaining in the owner or his grantees; and where such conveyances are made with reference to the map or plat, the dedication of the easement for street purposes cannot be subsequently revoked as against the grantees, and the title of the grantees of subdivisions abutting on such streets in the absence of a contrary showing, extends to the center of such highway subject to the public easement. And where the highway is lawfully surrendered the then holder of the title to abutting property and to the center of the street has the property relieved of the public easement.</p>

F. Horne, Judge. Statement. W. B. Adams filed his bill of complaint against D. G. Malloy, J. H. Malloy and C. C. Hughes for the removal of a cloud from the title to certain described lands.

<p>1. Section 3 of Article VIII of the Constitution of 1885 prescribes the conditions on which new comities may be created as to the apportionment between the old and new counties of the existing liabilities of the county or counties from which such new county or counties may be formed, and where one county acquires additional territory from another the proportion of the liabilities of the latter to be assumed by the former.</p> <p>2. Chapter 6247 Laws of 1911 providing for the creation of Pinellas County indicates no legislative intention to allow Pinellas County any interest in the county properties of Plillsborough County that may be located in the latter county.</p> <p>3. In a suit by Hillsborough County against Pinellas County to ascertain the amount of the latter’s part of the former’s county indebtedness when the latter county was created and to compel the latter county by appropriate proceedings or the levy of taxes to raise funds to pay the indebtedness so found to be due, a decree requiring Pinellas County to levy annually a tax sufficient to pay off its pro rata share of the indebtedness of Hillsborough County ascertained to be due is not erroneous.</p>

<p>Appeal from Circuit Court, Hamilton County; D. A. Simmons, Judge.</p>

<p>Appeal from Circuit Court, Polk County; F. A. Whitney, Judge.</p>

<p>Writ of error to Circuit Court, Leon County; E. C. Love, Judge.</p>

<p>Specific Performance — Agent for Sale of Land Cannot Bind Principal by an Act Beyond the Limitations of His Authority — Written Memorandum for Sale of Land Must Definitely Describe Land — Agent With General Authority to Sell Land Has No Power to Bind His Principal by a Written Memorandum or Contract of' Sale, unless Specially Authorized so to Do. An Agent With Authority to Bind His Principal in a Contract for the Sale of Land, is a Special Agent, and all' Persons Dealing With Him for the Purchase of Such Land are Chargeable With Full Notice of all the Terms and limitations of his Authority as' such Agent, and Are Bound Thereby.</p> <p>1. It is well settled that an agent empowered to sell land and to bind his principal by a written memorandum or contract for its sale, is a special agent, and that all persons dealing with him for the purchase of such land are charged with notice of the terms and limitations of his authority as such agent to sell the same. And where the agent is authorized to sell land, one-fourth of the purchase price to be paid in cash, and the balance to be payable in one, two and three years with stipulated interest on the deferred payments, he transcends his authority when he makes a contract for its sale that provides that such deferred payments shall be made on or before one, two and three years respectively, and that such deferred payments may be made at any time at the option of the purchaser, and his principal is not bound by such unauthorized contract.</p> <p>2. The written memorandum for the sale of land1 required by the statute of frauds cannot rest partly in writing and partly in parol, but the written memorandum must disclose all the terms of the sale.</p> <p>3. It is also well settled that specific performance will not be enforced where the contract does not designate with certainty the lands to be conveyed, and that parol proof is inadmissible to supply a description of the land not identified in the writing. The description of the land to be conveyed is one of the most essential parts of an agreement to sell. Such contract must be in writing, and must contain such description of the land either in terms or by reference, that the property may be identified without resort to parol evidence; and specific performance will not be decreed of any agreement, unless the parties have described the land to be conveyed in their agreement, or unless it furnishes the means by which it can be identified with reasonable certainty.</p> <p>4. A real estate agent or broker in whose hands an owner places lands for sale, or who is employed to sell lands, does not thereby acquire authority to bind his principal by signing an agreement of sale of such lands. The inference that such real estate agent or broker has been endowed by his principal with authority to bind him in a written agreement of sale cannot be drawn from circumstances entirely consistent with his employment as a mere agent and broker, nor without other circumstances clearly indicating the grant of such greater authority.</p>

<p>1. A Common Carrier may by special arrangement with a shipper or by implication through habitual custom and usage agree to accept and receive goods for transportation placed along its line for shipment at places other than the regularly designated places for the reception and delivery of freight.</p> <p>2. Where goods are lost or injured as a result of the negligent act of the carrier, to whom they have been delivered for transportation, concurring with an Act of God, the carrier cannot maintain that the Act of God was the sole proximate cause of the loss of or injury to the goods so as to relieve it from liability.</p> <p>3. The liability of a Common Carrier entrusted with goods for transportation is that of an insurer of the goods and it is held to a strict accountability for injury to or loss of such goods.</p> <p>4. A declaration which in substance alleges that although the goods which were delivered to a carrier for transportation were destroyed by an Act of God yet the carrier could have foreseen such result and by the exercise of prudence and diligence could have protected the goods from injury but that it negligently failed to do so, states a cause of action against the carrier.</p> <p>5. Negligence of the shipper concurring with an Act of God in the destruction of goods delivered to a carrier for transportation constitutes no defense by the carrier to an action brought against it by the shipper for damages for loss of the goods, where the carrier is also guilty of negligence which concurring with the Act of God resulted in the loss of the goods.</p> <p>6. Where usage and custom is relied upon to show a constructive delivery of goods to a common carrier for transportation, the burden is upon the party relying upon such custom and usage to clearly and definitely establish it, and where the evidence is uncertain and contradictory, it will be deemed insufficient.</p> <p>7. Where the claim is made that notwithstanding the intervention of an Act of God, injury to the goods delivered to a common carrier for transportation would not have occurred but for the negligence of the carrier in exposing them, the burden of proof is upon the party asserting such claim.</p> <p>8. The evidence examined and found to be insufficient to establish a constructive delivery of the goods by the shipper to the carrier for transportation.</p>

<p>Shackleford and Cockrell, JJ., dissent.</p>

<p>I. Certiorari is a common law writ which issues in the sound judicial discretion of the court to an inferior court, not to take the place of a writ of error or an appeal, but to cause the entire record of the inferior court to be brought up by certified copy for inspection, in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law, in cases where no direct appellate proceedings are provided by law.</p> <p>2. On certiorari the court issuing the writ considers only the face of the record of the inferior court. Matters in pais are not within the purview of the writ.</p> <p>3. A petition for a writ of certiorari to review the proceedings and judgment of a court should make it appear that an illegal proceeding appears by the face of the record complained of.</p> <p>4. Where a judgment of the Circuit Court affirming a judgment of the County Judge’s Court, considered with reference 1o the pleadings and record proper in the County Judge’s Court, is not in accordance with the essential requirements of law, the judgment of affirmance may be quashed on certiorari.</p>

<p>1. Under Section 2496 of the General Statutes of 1906, a subsequent mortgagee of personal property occupies the same position with reference to a prior unrecorded mortgage upon the chattel as a subsequent purchaser.</p> <p>2. Section 2496 General Statutes of 1906 makes possession by the mortgagee of mortgaged personal property essential to th,e validity of the mortgage as to creditors and subsequent purchasers for a valuable consideration and without notice unless it be recorded.</p> <p>3. A chattel mortgage once void as to a subsequent mortgagee for a valuable consideration and without notice of the prior unrecorded mortgage is not restored to validity, as against the second mortgage in the absence of fraud on the second mortgagee’s part, by filing it for record before the second mortgage is filed for record.</p>

<p>Writ of Error to Circuit Court, Jackson County; D. J. Jones, Judge.</p>

<p>Writ of Error to Circuit Court, Madison County; J. T. Wills, Judge.</p>

<p>Writ of Error to Circuit Court, DeSotO' County; F. A. Whitney, Judge.</p>

<p>1. Section 773 of the General Statutes of 1906 requires the County Commissioners of the several counties when bringing a suit to bring it in the name of the county of which they are commissioners.</p> <p>2. In view of the above statute a suit brought by certain persons as County Commissioners etc, will be treated as a suit brought by such persons individually.</p>

<p>Writ of Error to Criminal Court of Record, Hills-borough County.</p>

<p>1. Intelligence, and not age, is the proper test by which competency of an infant witness should be determined, and where the witness shows an appreciation of the nature and obligation of an oath, competency to testify appears.</p> <p>. 2. A cause should not be reversed for insufficiency of the evidence where other competent evidence is sufficient to sustain the verdict, though a child’s testimony be admitted, which if incompetent could not reasonaby have influenced the jury.</p> <p>3. It was not error for the State Attorney to interrupt defendant’s counsel to state to the jury that “in this case you can find the defendant guilty of murder in the first degree, or you can acquit him entirely,” where the indictment was' found more than two years after the homicide was committed, so as to bar a conviction except for a capital offense,- and where the interruption did not deprive defendant’s counsel of an opportunity to reply, and the statement could not have prejudiced the jury in view of the evidence and the charges given.</p> <p>4. A defendant in a criminal case cannot avail himself of an error in a charge given by the trial court where the same error is embraced in instructions requested by him and given by the court.</p> <p>5. Judgment will not be reversed for erroneous charges as to the lesser degrees of homicide where the jury found the defendant guilty of murder in ' the first decree and the charges could not reasonably, have misled the jury.</p> <p>6. A judgment shoud not be reversed or new trial granted for error of procedure unless it shall appear from»an examination of the entire cause that the error has injuriously affected the substantial rights of the complaining party.</p> <p>7. A judgment will not be reversed in appellate proceedings on the ground that the evidence is insufficient to support the verdict, where there is sufficient evidence to sustain the verdict, and it does not appear that the jury were not governed by the evidence in making their finding.</p>