Volume 72 — Florida Reports

<p>Writ of Error to Circuit Court, Jackson County; C. L. Wilson, Judge.</p>

<p>Where it appears that-a plaintiff’s injury was “caused by his own negligence” he cannot under the statute recover damages from a railroad company for such injury.</p>

<p>Where in a suit to foreclose a mortgage lien it is alleged that a subsequent purchaser of the mortgaged property had constructive notice of the mortgage by virtue of its recordation, and such record is insufficient as constructive notice, and actual notice is not alleged, an order sustaining an appropriate demurrer to the bill of complaint will be affirmed.</p>

<p>Writ of Error to Circuit Court, Walton County; A. G. Campbell, Judge.</p>

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

<p>Where the transcript of the record fails to show any final judgment, a writ of error purporting to be directed to such judgment will be dismissed by the appellate court ex proprio motu.</p>

<p>Writ of Error to Circuit Court, Jackson County; C. L. Wilson, Judge.</p>

<p>1. Under an indictment for homicide, where the State seeks to introduce a dying declaration of the deceased in evidence, it should be first shown to the satisfaction of the court that at the time the declarations were made the deceased not only considered himself in imminent danger of death, but that he evidently was without hope of recovery. The circumstances under which the statements were made must be shown, in order that the court may determine whether the statements are admissible as dying declarations.</p> <p>2. The utmost care and caution should be exercised by the court in the admission of dying declarations, since such declarations are necessarily a species of hearsay evidence and their admission in evidence is an exception to the general rule of evidence which requires that the witness shall be sworn and the defendant given privilege of cross-examination.</p> <p>3. Whether a sufficient and proper predicate has been laid for the admission in evidence of dying declarations is a primary matter for determination by the trial court, being a mixed question of law and fact, and the judgment of such court thereon is entitled to great weight, every presumption being in favor of its correctness, but such ruling'is subject to review by an appellate court, though it will not be disturbed, unless it clearly appear to be erroneous. If the appellate court is clearly convinced that the trial court committed error in admitting such dying declarations, it is its duty to pass upon such ruling, when the same is properly assigned as error, and to reverse the judgment if necessary for the furtherance of justice.</p> <p>4. In proving dying declarations only such statements should be received as evidence as relate to what actually transpired, who were the actors, the position of persons, what was said by the parties, what were the instruments used, who used them and how, and like matters, excluding, if possible, everything except what relates to the res gestae.</p> <p>5. It may be harmful error, as in this case, to admit evidence of a portion of a dying declaration that is inadmissible as dying declarations.</p>

<p>1. Defendants in criminal cases applying for continuances on the ground of the absence of witnesses must in all cases show diligence in procuring the attendance of such witnesses, but where a second or any subsequent application for continuance is made on the ground of the continued absence of the same witness, extraordinary diligence must be shown to have been exercised in procuring the evidence, else it is not error to refuse the application.</p> <p>2. Motions for a continuance are in the discretion of the trial court, and the action of that court on them will not be reversed unless there has been a palpable abuse of that discretion to the disadvantage of the accused, or whereby his rights ma}- have been jeopardized.</p> <p>3. Defects in indictments and informations should be called to the attention of the trial court by a motion to quash or a demurrer, so that the defects, if any, may be corrected by the filing of another indictment or information. Neither the common law nor our statutes favor the policy of the defendant in waiting until the last stage of the cause and attacking such defects by a motion in arrest of judgment, the granting of which would have the effect of unraveling the whole proceedings.</p> <p>4. While the sufficiency of the allegations in an indictment to charge the offense may be tested by a motion in arrest of judgment, yet upon this motion the indictment should receive a liberal construction, and even an informal or imperfect allegation of an essential fact will be deemed a sufficient averment of that fact. A defective allegation not affecting the real merits, or a merely formal or clerical error, or an allegation of unnecessary matter not concerning the substance of the charge, would not be ground for arresting the judgment.</p> <p>5. Where an indictment does not wholly fail to allege a crime or an essential element of a crime and sufficiently states the nature and cause of the accusation against the defendant, and is not so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defence, or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense, such indictment will not on a motion in arrest of judgment after verdict be held legally insufficient to sustain a conviction.</p> <p>6. An assignment based upon the overruling of the motion for a new trial, which questions the sufficiency of the evidence to support the verdict, cannot be considered by an appellate court when the evidence is not brought before such court by the bill of exceptions.</p>

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

<p>1. Where there is no real doubt as to who was the aggressor in a homicide, the exclusion of uucommunicated threats made by the deceased may not be harmful, if error.</p> <p>2. Where asserted newly discovered evidence is not such as ought to produce on another trial an opposite result on the merits, it is not error to deny a new trial on that ground.</p>

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

<p>Writ of Error to Circuit Court, Dade County; H. P. Branning, Judge.</p>

<p>Appeal from Circuit Court, Jackson County; D. J. Jones, Judge Pro Hac Vice.</p>

<p>1. Pleas in abatement are required to possess the highest degree of certainty in their averments and all intendments are taken against the pleader.</p> <p>2. A plea in abatement to an indictment upon the ground that the Clerk of the Circuit Court failed to correctly record the list of persons selected by the County Commissioners to serve as jurors, is defective in that it does not exclude the idea that the names of the persons composing the jury which found the indictment were drawn from the jury box prepared as directed by Section 1574 of the General Statutes.</p> <p>3. The failure of the Clerk of the court to correctly" record the list of persons selected by the County Commissioners to serve as jurors cannot be harmful to one indicted by a grand jury composed of persons whose names appeared upon such list, but whose names were properly placed in the jury box and drawn therefrom in accordance with the requirements of the statute to serve as jurors.</p> <p>4. Objections to evidence upon the ground that it is irrelevant and immaterial, are so general in character as to be vague and nugatory and without weight before an appellate court, unless it appears that the evidence objected to is palpablj prejudicial, improper and inadmissible for any purpose.</p> <p>5. Where a witness in reply to a question makes a statement which is objectionable as violating the rules of evidence, the proper course is to move that the statement be stricken and the jury directed not to consider it, specifying particularly the ground of objection.</p> <p>6. In the trial of an indictment for murder where the defense is self defense, evidence on the part of the State that the deceased suffered from a physical infirmity impairing his strength and vigor is admissible where it is shown that the defendant knew of such infirmities.</p> <p>7. Where a question propounded to a witness does not itself indicate the relevancy of the answer, in order to have the court’s ruling upon such question reviewed on appeal, the person seeking to introduce the evidence should make a proffer of what he proposes to prove so that the trial and appellate court may determine whether the proposed evidence is material. If the party complaining fails to do that he fails to make the alleged error to appear.</p> <p>8. Where the State in a criminal prosecution offers evidence of inculpatory statements made by the defendant, the latter has a right to have placed before the jury the entire conversation or all the statements made by the defendant at the same time relating to the same subject-matter, whether such other statements or the remainder of such conversation is exculpatory in character or not.</p> <p>9. Testimony of a witness which is immaterial to the issue, but prejudicial in character to the defendant, should be stricken out upon motion.</p> <p>10. Upon the trial of an indictment for murder, instructions given by the Coroner to the jury of inquest concerning the importance of certain facts as evidence are not admissible.</p> <p>IX. Upon the trial of an indictment charging the defendant with the commission of a capital offense, it is important that the defendant should be present at every stage of the trial, including the argument of counsel.</p>

<p>Where the circumstances of a personal injury warrant the recovery of damages for future pain and suffering, the instructions to the jury should limit the recovery to such pain and suffering as the evidence shows the party is reasonably certain to endure as a result of the injury.</p>

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

<p>1. It is the duty of a common carrier of live stock to provide proper facilities for the loading, transportation and delivery of the live stock which it undertakes to carry, and during the transportation of the stock to take such precautions as reasonable prudence suggests to insure a safe delivery.</p> <p>2. The duties and responsibilities of a common carrier of live stock may be modified by contract between the carrier and shipper of the stock, and where the carrier relies upon such a contract to relieve it of its common law liability in an action against it for damages resulting from its failure to transport the stock safely, it must plead and prove such contract.</p> <p>3. In .the absence of.a contract limiting the liability of a common carrier of live stock, its liability is that of an insurer against such loss or damage as does not arise from the Act of God, the public enemy, and those arising from the nature and propensities of the animals received for transportation against which due care could not provide.</p> <p>4. In an action upon the case for damages against a railroad company for negligently injuring the plaintiff’s live stock during transportation, a prima facie case is made for the plaintiff when he shows the delivery of the stock to the railroad in good condition, delivery by the railroad companjr at the point of destination in bad condition, and that neither the shipper nor his agent accompanied the stock in charge of the same during their transportation. In such case the burden is upon the railroad company to show that the loss or injury to the live stock did not result from negligence on the part of the railroad company, or that the cause of the loss or injury was within one of the excusatory exceptions recognized by law or provided for by the terms of the contract.</p> <p>5. In an action against a railroad company for damages resulting from the negligent handling by the railroad company of live stock during transportation, it is proper for the plaintiff to show the bruised and scratched condition of the stock as tending to show rough handling by the defendant carrier.</p> <p>6. A demurrer to evidence admts the truth of all the testimony and all reasonable deductions that can be made therefrom, and it should set forth all the evidence intended to be admitted thereby. The object of such a demurrer being to refer to the court the law arising from admitted facts.</p>

<p>1. Under an indictment for an assault with intent to commit murder, the defendant may be convicted of an assault with intent to commit manslaughter, and when the evidence adduced is sufficient to support such verdict, it is not reversible error for the trial court to refuse requested instructions based upon Section 3229 of the General Statutes of Florida, which relates to punishment for culpable negligence.</p> <p>2. In order to warrant the conviction of a defendant under an indictment, charging him with assault with intent to commit murder, of any of the grades or degrees of unlawful homicide, the evidence must establish the intent of the defendant to commit the crime, but where such intent is established by the evidence adduced the conviction will be affirmed.</p>

<p>Writ of Error to Circuit Court, Dade County; H. P. Branning, Judge.</p>

<p>Appeal from Circuit Court, Taylor County; M. F. Horne, Judge.</p>

<p>1. Where circumstantial evidence is relied upon by the State for conviction in a criminal prosecution, the circumstances taken together must be of a conclusive nature and tendency leading on the whole to a satisfactory conclusion and producing in effect a moral certainty that the accused and no one else committed the offense, before a verdict of guilty is justified. It is not sufficient that the facts create only a strong probability of guilt.</p> <p>2. Evidence examined and found to be insufficient to support a verdict of guilty against the defendants charged with larceny.</p>

<p>Equity 'Practice—’Plow Absence of Circuit Judge Should be Shown Before Another Judge Should Act in His Stead— Setting Chancery Cause Down for Hearing on Bill, Plea and Answer Before the Cause Is at Issue.</p> <p>1. Before the judge of one circuit should act in a cause pending in another circuit because of the absence of the judge of such other circuit, the fact of such absence should be made to appear at least by the sworn affidavit of some person who knows of such absence, and not simply by the bare unverified certificate of counsel in the cause.</p> <p>2. Where a chancery cause is not at issue because no replication to the answer has been filed, and the time for taking testimony has not begun to run; under the chancery rule in such a case the defendant has no right to set the cause down for hearing on bill and answer.</p>

<p>1. Under the provisions of Section 3979 of the General Statutes of 1906, the defendant in a criminal prosecution may at his option be sworn as a witness in his own behalf, “and shall in such case be subject to examination as other witnesses.”</p> <p>2. 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>3. Where a defendant in a criminal prosecution testifies as a witness in his own behalf, the State has the right on cross-examination to interrogate him as to whether he has previously been convicted of a criminal offense.</p> <p>4. Where a defendant in a criminal prosecution offers himself as a witness in his own behalf he may be contradicted and impeached as any other witness and may be cross-examined as to his former conviction on a similar charge even in another State.</p> <p>5. To constitute perjury for false swearing in the trial of a cause the fact sworn to need not be material to the main issue; but if.it be conducive to the point in issue or a guide to the court or jury, even though circumstantial, it is perjury.</p> <p>6. If the defendant in a criminal prosecution offers himself as a witness in his own behalf, he may be asked on cross-examination if he has been convicted of another offense, especially of a similar character to the offense for which he is being tried, and if he answers such question falsely, he may be convicted of perjury.</p>

<p>Appeal from Circuit Court, Dade County; M. F. Horne, Judge.</p>

<p>Practice at Law—Appellate Practice.</p> <p>Where the appellate court finds that the court below erred in rejecting material and admissible evidence of the plaintiff in a cause, and the evidence of other witnesses on her behalf, and in striking all or any part of the material evidence on behalf of the plaintiff, and in directing a verdict for the defendant, the judgment below will be reversed.</p>

<p>1. Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right.</p> <p>2. Subrogation arises by operation of law where one having a liability or a right or a fiduciary relation in the premises, pays a debt due by another under such circumstances that he is in equity entitled to the security or obligation held by the creditor whom he has paid. This is called legal subrogation.</p> <p>3. Conventional subrogation depends upon a lawful contract and occurs where one having no interest in or relation to the matter, pays the debt of another, and by agreement is entitled to the securities and rights of the creditor so paid.</p> <p>4. When a first mortgage lien existing against real estate is paid off and the lien discharged, the lien of a second mortgage thereon becomes at once, by operation of law, a first lien on the property; and this first lien, and the right to enforce it as such, are vested rights.</p> <p>5. Courts of equity will not apply the doctrine of subrogation where to do so would be to deprive a party of a legal right.</p> <p>6. Where a party who is under no duty legal or otherwise, to pay a first mortgage debt, and has no interest in the property, loans money that is used to pay off such first mortgage, and takes a mortgage on the same and other property, with an understanding with the mortgagor “that he was to have a first lien on the property covered by said mortgage,” and “in the belief that there were no other liens on the property caused to be satisfied on record the first mortgage,” with no agreement that the security of the first mortgage shall be kept alive for his benefit, there is no clear showing of a right to a conventional subrogation.</p>

<p>Where it is alleged that complainant, a trustee of a corporation not for profit, negotiated .personally for mortgage loans on the corporate property and was looked to by the mortgagees for payment; that at the request of the other trustees complainant advanced money which was paid on the mortgages; that when the mortgages were adjusted with the creditors the rights of the complainant in the premises were recognized, such allegations as against a demurrer show a right to a legal subrogation.</p>

<p>Writ of Error to Circuit Court, Pasco County; O K. Reeves, Judge.</p>

<p>1. When the voir dire examination discloses that an impartial jury was readily selected from a distant portion of the county, there is no error in refusing a change of venue.</p> <p>2. The trial of a homicide one month after its commission did not under the circumstances show undue haste.</p> <p>3. Upon proof of a conspiracy to commit murder the court mav instruct that it is immaterial which one of the conspirators fired the fatal shot, and that a doubt as to that identity would not destroy the State’s case.</p> <p>4. The court should not instruct upon the credibility of a particular witness, not an accomplice.</p> <p>5. While it is the better rule to instruct, if requested by the defendant, that “no presumption of guilt arises from the failure of the defendant to take the stand and testify in his own behalf,” yet other charges sufficiently cured the omission.</p> <p>6. The evidence supports the verdict.</p>

<p>1. The provision of the constitution in reference to the right of an accused to be tried by an impartial jury in the county where the crime is alleged to have been committed is an important one to the accused.</p> <p>2. Where an application in a criminal prosecution for a change of venue from the county where the crime was committed, is made by the prosecuting attorney, and the accused objects thereto, the matter should be tested in some way so as to make it clearly appear that it is practically impossible to obtain an impartial jury to try the accused in that county.</p>

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

<p>Writ of Error to1 Criminal Court of Record, of Duval County; James M. Peeler, Judge.</p>

<p>1. The plaintiff in error should file in the appellate court his assignment of errors within three days after the filing of the copy of the record, in compliance with the provisions of Sections 1706 and 4044 of the General Statutes of 1906. If for any reason the assignment cannot be filed within the time specified, the plaintiff in error should apply to the appellate court for further time.</p> <p>2. When a grand jury conceives that the foreman whom they had selected was disqualified from signing an indictment to be returned by such jury, the better procedure is for the grand jury to come into court and report the apparent disqualification and obtain a ruling of the court thereon and an order to select another one of its members to act as foreman. The fact that this course was not pursued, but that the grand jury came into court and announced the disqualification of their foreman and that they had selected another one of their members as foreman constitutes at most a mere irregularity which is not sufficient to vitiate an indictment subsequently returned by such jury which is signed as foreman by the member last selected.</p> <p>3. Verdicts in criminal cases should be certain and import a definite meaning free from ambiguity; but any words that convey beyond a reasonable doubt the meaning and intention of the jury are sufficient, and all fair intendments should be made to sustain them. If the intention of the jury is clearly manifested in the language used mere inaccuracies of expression will not vitiate the verdict.</p> <p>4. The safer and better practice in preparing a verdict in a criminal case is to use the word “defendant” therein and also to state the name of the defendant, yet, if the intention of the jury is clearly manifested in the language used, the verdict will be upheld.</p> <p>5. Where no errors of law or procedure are made to appear to the appellate court upon a writ of error and, upon examination, such court finds that the evidence is sufficient to support the verdict, the judgment will be affirmed.</p>

<p>1. In actions for negligent injuries it may be necessary to allege only the relation between the parties out of which the duty to avoid negligence arises, and the act or omission that proximately caused the injury, coupled with a statement that such act or omission was negligently done or omitted.</p> <p>2. In an action against an electric railway company whereby it is sought to recover damages for the death of a person wdio is alleged to have been killed by reason of the negligent and careless operation of a car of such company, where the evidence adduced affirmatively shows that the deceased failed to exercise that degree of caution and prudence which the known risks required, but so negligently rode a motorcycle upon the car track as to bring about a collision between his motorcycle and the approaching car as to occasion his death, the speed of the car cannot be considered the proximate cause of the fatal injury, and there can be no recovery under the provisions of Section 3149 of the General Statutes of 1906, the deceased having come to his death through his own negligence.</p>

This is an Original Proceeding in Mandamus. Statement. An alternative writ of mandamus was issued by this court against the three members of the County. Held: which is contrary to law. “38. The allegations in said alternative writ affirmatively show, multifariousness. “39. The allegations in said alternative writ affirmatively show, that said Relator is herein alleging material matters, which he could not possibly know without having violated the law. “40.

<p>The Circuit Court having jurisdiction to decide that the offense of embezzlement committed on one date is a different offense to an embezzlement committed the day before that date, its order sustaining a demurrer to a plea of autrefois acquit will not be reviewed on habeas corpus.</p>

<p>1. A County Superintendent has a discretion as to his endorsement of school teachers’ certificates issued in another county.</p> <p>2. Assuming that a County Superintendent’s refusal to endorse a teacher’s certificate is 'subject to judicial review, there is nothing here to show caprice or arbitrariness.</p>

<p>In the absence of some special equity the County Judge’s Court, not the. Circuit Court, has original jurisdiction over contests of wills.</p>

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

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

<p>1. The State Canvassing Board may by appropriate proceedings in mandamus be required to reconvene and to canvass amended and corrected returns of a primary election held pursuant to the statutes of the State, where the returns have been amended and corrected in judicial proceedings.</p> <p>2. In response to a command in mandamus proceedings to reconvene and to canvass amended and corrected returns of a primary election, the State Canvassing Board may aver fraud in the amended and corrected returns when the members of such board were not parties to the judicial proceedings under which the amended and corrected returns were made.</p> <p>3. The burden is upon the respondents to prove the affirmative averments in their answer of fraud in amended and corrected primary election returns they are commanded to canvass or to show cause for not so canvassing.</p>

<p>1. A return to an alternative writ of mandamus should, for the purpose of making an issue, set up a positive denial of material facts as stated, or should state other facts sufficient to defeat relator’s right.</p> <p>2. The statement of a return to an alternative writ of mandamus should be positive, and not on information and belief.</p> <p>3. If the answer to an alternative writ of mandamus is wholly insufficient as a pleading, a demurrer will lie.</p> <p>4. The sufficiency of the return to an alternative writ of mandamus may be determined on a motion, for a peremptory writ.</p> <p>5. A denial of matters alleged in an alternative writ of mandamus by way of inducement, does not present a material issue.</p> <p>6. Where a portion of an answer to an alternative writ of mandamus is not responsive, but is wholly irrelevant to the allegations of the writ, such portion may be stricken on proper motion.</p> <p>7. In so far as the general denials of an answer are qualified or explained by the positive averments as to “the truth and fact” of the matter in issue, the latter averments control, particularly where the denials are of negative allegations.</p> <p>8. To an alternative writ of mandamus commanding the inspectors and clerk of a primary election at a certain precinct to properly and correctly tally and count and make a correct return of all the votes cast in the precinct at a primary election for the several candidates for nomination by a political ■party for a certain office so that the returns will correctly and accurately show all the first and second choice votes cast for each of the respective candidates named in the writ, or show cause why the}' refuse so to do, an answer which merely denies that the returns made by such inspectors and clerk are ■ inaccurate, coupled with the averment that the ballots were called, counted and tallied as accurately as lay within their ability, is not a valid return.</p>

<p>Original Proceedings for Mandamus.</p>

<p>Original Petition for Mandamus.</p>

<p>1. Mandamus will not issue where it is not shown that any remedial good will result to the relator, or that it will secure him in any right of which he has been deprived.</p> <p>2. Mandamus will not issue commanding the State Canvassing Board to reconvene and recanvass a certain named amended primary election return from one county and leaving it to the option and discretion of the board to count or not amended and corrected returns from that and other counties that may be before them, as to which matters the board has no discretion.</p>

<p>Mandamus will not issue to compel the canvass of amended primary election returns, where it does not appear that the returns were amended pursuant to judicial proceedings, or that a canvass of the amended returns would result in a benefit to the relator. Nor will mandamus issue until there is a breach of duty.</p>

<p>Writ of Error to Circuit Court, Jackson County; C. L. Wilson, Judge.</p>

<p>Writ of Error to Circuit Court, Walton County; A. G. Campbell, Judge.</p>

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

<p>An information charging an attempt to commit a crime need not allege that the accused failed in the perpetration of the offense, or was intercepted or prevented in its execution.</p>

<p>1. The action of replevin under the statute lies for an unlawful detention of chattels as well as in cases where the taking was tortious.</p> <p>2. Where a seller of chattels reserves title in himself until the payment of the price, he may maintain an action of replevin upon default in payment of the price.</p> <p>3. In an action of replevin where the defendant lawfully obtained possession of the chattel, but failed to comply with the con ditions of the agreement under which he came into possession of the property, and under the terms of the agreement such default confers on the plaintiff the right of possession, no demand by the plaintiff for possession is necessary before bringing the action. Nor is a demand necessary where the defendant asserts title to the property in dispute.</p> <p>4. Where in an action of replevin a plea interposed by defendant to the declaration sets up no defense to the action, and the plaintiff joins issue upon such plea and goes to trial, the court should not withdraw from the jury consideration of the issue presented by such plea.</p> <p>5. Where a cause has been tried upon an immaterial issue which does not determine the rights of the parties in the litigation, judgment should not be entered upon the finding on such a plea.</p> <p>6. Where pleas to a declaration present no point in bar, abatement or set-off, the plaintiff may treat them as nullities and have a judgment as for want of a plea.</p> <p>7. Where K. sold an automobile to E. taking in payment part cash and notes for the balance and retaining title to the automobile until the purchase price should be paid in full, the notes providing that in default of payment or in case of alienation of the property by the maker of the note, the payee should be authorized to take possession of the property, Held: that upon default by the payee to pay one of the notes at maturity K. could maintain an action of replevin for the automobile without previous demand and was entitled to possession of the property and damages for the wrongful detention, and that the measure of damages was the value of the use of the property as estimated by the market price of such use during the period of unlawful detention.</p> <p>8. In such a case a plea by defendant claiming a set-off either • against the damages recoverable for the unlawful detention, or the value of the car, on account of the money paid on the purchase price thereof is without merit.</p> <p>9. Amendments to pleadings at the trial of a cause are allowable in the discretion of the court upon such terms as are reasonable.</p> <p>10. Section 2188 General Statutes of Florida, 1906, provides that judgment for the plaintiff in actions of replevin shall be satisfied by the recovery of the property or of the amount adjudged against the defendant and the sureties on the forthcoming bond, where the property has been redelivered to the defendant on his forthcoming bond.</p> <p>11. The sureties upon a forthcoming bond given by a defendant in an action of replevin, submit themselves to the acts of the principal and to the judgment as a legal consequence falling within the suretyship. They are represented in the proceedings by their principal, are bound by his acts, and are quasi-parties to the suit; they thus have their day in court and are bound by the judgment against their principal to the exclusion of all defenses that were or might have been set up by him.</p> <p>12. Errors occurring in the pleadings and trial of a cause may be rendered harmless by the verdict and judgment so far as the complaining party is concerned.</p>

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

<p>1. General objections to evidence are without weight in an appellate court if the evidence is admissible for any purpose.</p> <p>2. In a bastardy proceeding the exhibition of an infant three months old to the jury for the purpose of having the jury compare it with the defendant to detect resemblances between the infant and reputed father, is error.</p> <p>3. In a bastardy proceeding, the amount which the statute requires the defendant to pay when the issue is found against him, for the necessary incidental expenses attending the birth, may be ascertained by the court without the intervention of a jury.</p>

Writ of Error to Circuit Court, Dade County; H. P. Branning, Judge. Statement.

<p>Original Proceedings in Mandamus.</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 testi- ^ mony so excluded.</p> <p>2. Alleged errors in the admission or rejection of testimony which do not weaken the effect of the admitted evidence, and that do not reach the legality of the trial itself, will not be considered ground for reversal where the evidence leaves no room for doubt of the defendant’s guilt.</p> <p>3. Evidence of declarations or acts of a defendant, prior to the commission of a crime by him, in his own favor or interest, falling within the class designated as “self-serving declarations and acts” and forming no part of the res gestae, is not admissible.</p> <p>4. In lawfully defending himself a man may take life when as a reasonably prudent person he has reasonable ground to apprehend a design to commit a felony on him or to do him some great personal injury and that there is imminent danger of such design being accomplished, though as a matter of fact there was no actual danger; but if he wrongfully occasions or brings about' the necessity for his action, though as a prudent man he may have reasonable ground to apprehend a design to commit a felony on him or to do him some serious personal injury and that there is imminent danger of such design being accomplished, he can not lawfully kill and justify his conduct on the ground of self-defence.</p> <p>5. An objection to a portion of a charge stating an abstract proposition of law on the ground that it is misleading may be removed by another portion covering the ground so fully as to leave no room for a misdirection of the jury.</p> <p>6. In a prosecution for murder, an instruction asserting the proposition that, in order to justify a killing under a claim of self-defense, the slayer must have resorted to all reasonable means at his command, consistent with his own safety to avoid the necessity of taking human life, is not erroneous, because not modified so as to bring, or limit such means to the knowledge of the defendant, especially in view of other instructions conveying this meaning.</p> <p>7. Where charges are expressly confined to offenses of a less degree than the one found by the verdict, and there is nothing in the charges that could have influenced the jury to misinterpret them or to misapply the evidence as to higher offenses included in the indictment, and there is evidence to sustain the verdict found for a higher offense, and there is no evidence to warrant a verdict of guilty of an offense of a lower degree, it is not material to consider whether the charges were legally accurate as applied to the offences of a lower degree than the one found by the verdict.</p> <p>8. It is within the sound judicial discretion of the trial court to grant a request of the jury to have read to them by the court stenographer the shorthand notes of the testimony of particular witnesses, for the purpose of refreshing their memories, and such proceeding is not objectionable on the theory that it gives undue prominence to the testimony of such witnesses. And where it is not contended that such notes were inaccurate or incorrect, an appellate court will not interfere with the exercise of such judicial discretion by the trial court in granting the request of the jury and permitting such shorthand notes to be read.</p> <p>9. It is not violative of the provisions of Section 3990 of the General Statutes of 1906, requiring that the charge of the court in capital cases shall be wholly in writing, for the trial court, in granting the request of the jury to have the shorthand notes of the testimony of certain witnesses read to them, to state to the jury orally that they must decide the case upon the testimony as they remembered it as given by the witness on the stand and that the shorthand notes of such testimony was read to them by the stenographer for the purpose of refreshing their memory as to the testimony of such witnesses, and that the reading by the stenographer was not evidence for their consideration. Such oral statement by the trial court is simply in the nature of a cautionary direction or instruction.</p>

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

<p>Under the provisions of Sections 7 and 9 and 14 of Article XVIII of our Constitution successors to all elective county officers whose terms of office would have expired on the first Tuesday after the first Monday in January, 1917, but whose office had become vacant by the incumbent’s death, resignation or otherwise, and such vacancy filled by Executive appointment prior to the general election held on the 7th day of November, 1916, must continue to discharge the duties and receive the emoluments of such offices until the expiration of the term in which the vacancy occurred, no election having been called and held to fill the unexpired term intervening the date of the General Election and the date when the next term begins.</p>

<p>Convictions in a County Judge’s Court may be reviewed on an appeal taken to the Circuit Court and not on writ of error; and a writ of mandamus will not be issued to require a Circuit Judge to review a judgment of conviction in a County Judge’s Court on a writ of error taken from such judgment, no appeal from the judgment having been taken as required by law.</p>

<p>1. If a cause can be fully disposed of without adjudicating constitutional questions raised therein, the courts will generally ignore such questions and dispose of the case on other grounds.</p> <p>s. Where there has been a signal failure to comply with the provisions of Chapter 6513 of the Laws of Florida (Acts of 1913), . requiring an information to be filed within twenty-four hours after the seizure of intoxicating liquors, which have been shipped into a county in which the sale of such liquors is prohibited by law, as well as a failure to comply with still other provisions of such chapter, a decree ordering the forfeiture and destruction of such liquors will be reversed.</p>

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

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

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

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

<p>Writ of Error to Circuit Court, Walton County; A. G. Campbell, Judge.</p>

<p>1. Where the complainant in a bill in chancery sets the cause down for hearing on bill and answer before replication filed to the answer, and consequently, before the cause is at issue, such complainant, in thus shutting the defendant off from proving the truth of his answer, must be held at such hearing to have admitted the truth of all the allegations of the answer, notwithstanding any formal defect in the oath to such answer.</p> <p>2. An execution is a lien upon personal property of the defendant in execution from the time such writ shall be delivered to the sheriff.</p>

<p>The obligation of a ne exeat bond should be enforced by action at law.</p>

<p>1. Where an indictment for murder in the second degree may be defective in charging that crime, but is sufficient to charge the crime of manslaughter of which the defendant is found guilty, the judgment will not be arrested because the indictment fails accurately to charge .the crime of murder.</p> <p>2 Motions in arrest of judgment based upon informal or imperfect allegations of essential facts in the indictment, should not prevail unless the indictment wholly fails to allege the crime or an essential element of the crime or is so vague and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after acquittal or conviction to substantial danger of a new prosecution for the same offense.</p> <p>3. Informal or imperfect allegations of essential facts m an indictment should be taken advantage of by motion to quash.</p> <p>4. No reversible error is committed by the trial court in giving instructions which when considered together are free from error prejudicial to the defendant.</p> <p>5. Every portion of a charge bearing on a subject must be considered in determining whether the charge upon such subject is free from error.</p> <p>6. It is not error for the court to refuse certain requested instructions when the substance of such requested instructions had already been covered by charges given.</p> <p>7. Evidence examined and found sufficient to support the verdict.</p>

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

<p>Writ of Error to Circuit Court, Hillsboroug-h County; F. M. Robles, Judge.</p>

<p>1. Where there is substantial legal evidence to support a verdict and nothing in the record shows that the jury were not governed by the evidence in making their finding, the verdict will not be disturbed as being contrary to the evidence.</p> <p>2. The proper practice is to move to strike irrelevant testimony which is given in answer to'a proper question.</p> <p>3. It is not error for the trial court to refuse requested instructions which are substantially covered by charges which the court had given.</p> <p>4. An instruction given by the court which embraces a correct proposition of law applicable to the evidence will not be rendered harmful because the court subjoins a correct reason which underlies the principle of law embodied in the instruction.</p>

<p>Appeal from Circuit Court, Duval County; Geo. Couper Gibbs, Judge.</p>

<p>Where the appellate court is impressed from the whole record in a cause that there is a strong probability that said cause has resulted in the court below in an injustice to the plaintiff in error, chiefly due to the probable loss or destruction of an original order of the County Judge authorizing a sale of the land in dispute on the application of the guardian for the defendant in error, then a minor, as well as an original order of such County Judge confirming such sale, it may, in order that complete justice may be done in the premises, reverse such cause and award a new trial thereof, with leave to the plaintiff in error to establish, if he can, under the statute in such cases such lost orders for use as evidence at the new trial of the cause.</p>

<p>Original Proceedings for Contempt.</p>

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

<p>Writ of Error to Circuit Court, Hernando County; O. K. Reaves, Judge Pro Hac Vice.</p>

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