Volume 83 — Florida Reports

<p>1. Under Section 1, Article V, of the Constitution as amended in 1914, the Legislature has power to establish a juvenile court in one or all of the several counties of the State, and to confer upon such courts jurisdiction, powers and duties that do not conflict with other organic provisions.</p> <p>2. It appears in this case that it was the duty of the municipal court of the City of Miami under Section 7, Chapter 8663, Acts of 1921, to transfer a charge made in that court against the petitioner who was under seventeen years of age, to the juvenile court of Dade County, and that imprisonment of petitioner under sentence of the municipal court is unlawful, and that on habeas corpus the petitioner should be ordered produced before the municipal court for appropriate proceedings under the law.</p>

<p>An Appeal from the Circuit Court for Polk County; John S. Edwards, Judge.</p>

<p>1. A marriage procured by fraud or while one of the parties thereto is actually under legal duress is voidable only and therefore valid and binding upon the parties until set aside and annulled by a court of competent jurisdiction.</p> <p>2. In a criminal prosecution of a husband and father upon a charge of unlawful desertion of his wife and unlawfully withholding from her and their child the means of support, evidence that the marriage of the parties' was procured by fraud and effected as a result of coercion is incompetent and inadmissible since it tends to prove that such marriage was voidable only.</p> <p>3. Evidence examined and found to be sufficient to support the verdict.</p>

<p>An Appeal from the Circuit Court for Palm Beach County; E. C. Davis, Judge.</p>

<p>An Appeal from the Circuit Court for Manatee County; M. A. McMullen, Judge.</p>

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

<p>1. In a prosecution for the offense of issuing a check upon a bank where the maker of the check had not sufficient funds on deposit -with the’ bank to pay the check, the burden is upon the State to show that the defendant gave the check for something of value, that he had not sufficient funds in the hank upon which the check was drawn, either at the time it was drawn or at the time it was presented for payment to pay the same and failure to make restitution or pay the money within twenty-four hours after notice.</p> <p>2. A defendant in a criminal prosecution is not entitled as of' right to an instruction to the jury to return a verdict of acquittal.</p> <p>3. Where the constitutionality of a statute is not attacked and it is not made to appear that it is a contravention of any designated portion of the constitution the court will assume its constitutionality and that it is sufficient as a basis for a criminal prosecution.</p> <p>-.4. Chapter 7203, Acts 1917, which prohibits the issuing by any one of a check on a bank when the maker of the check lias not sufficient funds on deposit with the bank to pay the ■cheek, requires written notice to be given to the maker of the •check of its presentation to and non-payment by the bank; the purpose of the notice being to give to the maker of the check an opportunity to make payment or return the thing of value obtained by the worthless check.</p> <p>5. Evidence examined and found sufficient to support the conviction.</p>

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

<p>A Writ of Error to the Circuit Court for Highlands County; George W. Whitehurst, Judge.</p>

<p>A Writ of Error to the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>An Appeal from the Circuit Court for Escambia County; A. G-. Campbell, Judge.</p>

<p>An Appeal from the Circuit Court for Palm Beach County; E. B. Donnell, Judge.</p>

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

<p>An Appeal from the Circuit Court for Seminole County; James W. Perkins, Judge.</p>

<p>A Writ of Error to the Circuit Court for Alachua County; A. V. Long, Judge.</p>

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

<p>A Writ of Error to the Circuit Court for Palm Beach County;'E. C. Davis, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Pinellas; M. A. McMullen, Judge.</p>

<p>1. Where one is convicted upon an indictment charging him with breaking and entering the dwelling house of another with intent to commit a felony, to-wit: the larceny of property of more than the value of twenty dollars, and the court finds that the defendant is a suitable person to be committed, under the statute to the Florida Industrial- School for Boys, and in the order committing the defendant recites that he was charged with breaking and entering with intent to commit a misdemeanor, the error in describing the -offense in such order does not invalidate the judgment and sentence, but the judgment will be reversed with directions to amend the commitment in so far as to make it speak the truth as to the nature of the offense charged.</p> <p>2. Pushing open a door entirely closed is a sufficient breaking to sustain a conviction for breaking and entering a dwelling house.</p> <p>3. Possession of stolen articles so recently as fourteen days after the theft is sufficient evidence upon which to warrant the jury in inferring guilt on the part of the person in possession, in the absence of a satisfactory explanation of such possession of the stolen goods by him.</p> <p>4. Evidence examined and found sufficient to support the verdict.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Duval; Daniel A. Simmons, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of DeSoto; George W. Whitehurst, Judge.</p>

<p>1. It is not error for the court to refuse to permit a witness undergoing cross examination to retire from the stand and refresh his memory hy examining a memorandum previously made by him of circumstances about which he testified, and recall him for further cross examination after he has done so.</p> <p>2. Where a party desires to attack the credibility of a witness’ testimony, or to show that his memory of events about which he testified was vague and uncertain, it may be done by making the witness his own and requiring him to produce the record if it is in his custody.</p> <p>3. It is not proper for a State Attorney to interrupt the cross examination of a witness and make a suggestion at a critical point in the development of the cross examination, as he may thus save and protect a false witness from betraying himself, but where the record discloses that the interruption did not have that effect, it is not such conduct on the part of the State Attorney as calls for a reversal on that account.</p> <p>4. Where the record discloses that no harm was done to a defendant by the court sustaining a general objection to a question without requiring the State Attorney to give the grounds for his objection, although error, is harmless.</p> <p>5. It is proper on cross examination to interrogate a witness about every thing that is said or done by the parties to a homicide relating to the difficulty from the beginning to the end, where part of the events have been testified to on direct.</p> <p>6. The State Attorney cannot limit investigation into the entire transaction by asking the witness about only one- part of the difficulty, and the defendant has a right to interrogate the witness on cross examination so as to bring out all that he saw and all the facts and circumstances connected with the matters already stated, as well the condition of the parties as their acts.</p> <p>7. To make such cross examination proper the questions must be confined to all the facts and circumstances connected with matters already stated that have any bearing on the case or any relation to the difficulty between the parties.</p> <p>8. A question so broad as to elicit matters that have no bearing on the ease or any relation to the difficulty between the parties is improper.</p> <p>9. On objection to a question that does not disclose that the answer would throw any light on the transaction, counsel should state to the court what he desires or intends to prove by the question so that the judge can determine its relevancy.</p> <p>10. There is no error in sustaining objections to questions propounded to a witness, where there is nothing in the questions themselves, nor in the evidence in the case, showing that the answers would be relevant or pertinent to the issues, and the .party does not make an offer of what he proposes to elicit by such questions in order that the court may judge of its relevancy.</p> <p>11. Whil.e it may be better for the court in its instructions to the jury to use some other term than that of “slayer” in referring to a person on trial for homicide, its use is not reversible error.</p> <p>12. A State Attorney should be particularly careful to avoid saying or doing anything that by reason of his personality and the esteem in which he is held in the community, might influence or effect the jury outside the evidence.</p>

<p>1. Where there is an independent and unconditional promise by one person to pay the debt .of another, and such promise is made for a valuable consideration which is subsequently paid' or executed by the promissee and is of direct pecuniary value to the promisor, the transaction is not within the statute of frauds, and the liability of the promisor is fixed by the falure of the principal debtor to pay the debt at maturity.</p> <p>2. The defense that an alleged promise is within the statute of frauds is admissible under the general issue in an action upon the promise.</p> <p>3. In an action upon the independent and unconditional promise of one. person to pay the debt of another, a plea averring that when the action was brought the .principal debtor was in the military service of the United States is without merit.</p> <p>4. There is no reversible error in sustaining a demurrer to pleas Which aver a state of facts admissible under the general issue.</p>

<p>A Writ of Error to tbe Circuit Court for Palm Beach County; E. B. Donnell, Judge.</p>

<p>Where an indictment charges a forgery “with intent to injure and defraud F. and some other person or persons to the grand jurors unknown,” and the proof shows that F. had no interest in and could not have been injured or defrauded by the'forgery, and no intent to injure any other person is shown, a judgment of conviction will be reversed.</p>

<p>A Writ of Error to the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>Where prejudice of the judge is asserted as required by the statute, though a change of venue is not authorized the judge should recuse himself in the case.</p>

<p> Certiorari; </p> <p>A case of original jurisdiction.</p>

<p>A Writ of Error to the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>1. Laches may bar a suit to remove cloucl from title.</p> <p>2. Laches is an unexcused delay in asserting rights during a period of time in which adverse rights in the premises have been acquired under circumstances that make it unequitable to displace such adverse rights for the benefit of those who are bound by the delay.</p> <p>. 3. 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 consequence of his so doing.</p> <p>4. He who comes into equity to get rid of a legal title as a cloud upon his own must show clearly the validity of his own title, and the invalidity of his opponent’s. Equity will not act in such cases in the event of a doubtful title. And a party to be relieved and to succeed in contests of this character must do so on the strength of his -own title, and not on the weakness of his adversary’s.</p> <p>5. The law is well settled that where it is clearly apparent upon the face of the bill that complainants therein • have slept so long upon their rights as to he guilty of laches in the assertion of them, such questiofi -of laches may be raised and determined upon a general demurrer for want of equity in the hill.</p> <p>6. The application by the courts -of the doctrine of laches depends upon the circumstances of each particular case.</p> <p>7. There is a well-established rule affecting more directly the pleadings in a court of equity to the effect that where a bill upon the face of its allegations show long acquiescence and laches by the complainants in the assertion of their claims, then it becomes necessary for them, by way of excuse for such apparent acquiescence and laches, to allege and prove some actual hindrance or impediment to the seeking of their rights, such as concealment of, or faultless want of knowledge of facts, and if they fail to allege or prove such excuse or reason for the long delay, laches will be imputed to them, and the courts will refuse their aid by reason thereof.</p> <p>8. No rule of law is better settled than that a court of equity will not aid a party whose application is destitute of conscience, good faith and reasonable diligence, but will discourage stale demands for the peace of society, by refusing to interfere where there have been gross laches in. prosecuting rights, or where long acquiescence in the assertion of adverse rights has occurred.</p> <p>9. One claiming under a conveyance to him merely “as trustee” without disclosing the beneficiaries or the nature or object of the trust he represents, cannot be regarded as having any rights superior to those who conveyed to him “as trustee.”</p> <p>10. Where complainant “as trustee” and certain of the defendants who claim a legal title through descent from Polly Lewis whose title to land was confirmed by the United States in 1825, had not asserted their rights till 1920, and others who claim adversely under a conveyance executed by Mary Lewis in 1832, have divided the land into city lots and blocks and have by executing conveyances, of and by giving or permitting liens .on the land, dealt with the land and with the title thereto as owners thereof' and the delay from 1832 to’ 1920 is asserting their rights by those claiming through descent .and their predecessors in interest, is not in any way explained or excused, such delay under the circumstances while adverse rights are being asserted through so long a period of time, is prejudicial to the rights of the adverse claimants, and constitutes laches that make it inequitable to annul the title of the adverse claimants.</p>

<p>An Appeal from the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>An Appeal from the Circuit Court for Madison County; M. F. Horne, Judge.</p>

<p>. A Writ of Error to a Judgment of the Circuit Court within and for the County of Manatee; O. K. Reaves, Judge.</p>

<p>A Writ of Error to the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>1. Pleas in abatement must be certain to a certain intent in every particular. They must leave nothing to be supplied by intendment and no supposable special answer unobviated.</p> <p>2. The only grounds of challenge to the favor applicable to grand jurors in this State are those provided for by Section 5954, Revised General Statutes.</p> <p>S. A public prosecution for a criminal offense must be conducted by the proper official representative of the State, and must not under any circumstances be placed under the entire management and control of private parties or their attorneys. It is proper, however, for the State Attorney, when there is no express statutory .prohibition, to obtain, with the consent of the court, the assistance of other counsel; and other members of the bar are not incompetent to be engaged for such assistance, and taking part in the trial, by reason of being retained and paid by private persons.</p> <p>4. When such assistants to the State Attorney are employed in a case, the State Attorney should always remain present at the trial, and see that a public prosecution does not degenerate into a private prosecution, and that the administration of the criminal law is not made a vehicle of oppression for the gratification of private malice, or the accomplishment of private gain or advantage.</p> <p>5. Where a plea in abatement avers that a member of the grand jury was a son-in-law of “a prosecutor” in the case, the plea is defective if it does not aver that the said grand juror participated in finding the indictment in the case.</p> <p>6. Where an indictment signed by an acting State Attorney is quashed because the acting State Attorney was employed by private .persons in the case, it is competent for the same grand jury with the assistance of a competent acting State Attorney to again indict the accused by due procedure.</p>

<p>1. The provisions of Chapter 7841, Acts of 1919, do not supersede the appellate procedure provided for in Sections Í710, 1711, 1712 and 1911, General Statutes of 1906, and Chapter 7355, Acts of 1917.</p> <p>2. Where the entry of appeal filed in the Circuit Court is sufficient to give the Supreme Court jurisdiction of the subject matter of the cause, but the failure of the clerk to record the entry of appeal in the chancery order book as is required by the statute as a substitute for a. citation, the Supreme Court does not have jurisdiction of the pers'on of the appellee unless there is a general appearance or waiver.</p> <p>3. A motion to dismiss an appeal on the ground that it does not appear by the record here that the entry of appeal was duly recorded will be denied where the motion to dismiss contains a ground that is' not confined to the question of jurisdiction of the appellee, but extends to the cause of action and amounts to a general appearance in the cause ' in this court, even though the motion states that the movants appear specially for the purpose of the motion, and for no other purpose.</p> <p>4'. Where a party appears specially for the purpose of presenting the question of jurisdiction of the court over his person, he must restrict his motion to the ground of such jurisdiction and must not include therein some other ground that recognizes the jurisdiction of the court over his person and amounts to an appearance in the cause by him, and if he does so, the motion will be held to be a general appearance, notwithstanding the fact that it purports to be made in pursuance o’f a special appearance.</p> <p>5. Where an appellee appears generally in the Supreme .Court and moves to dismiss the appeal upon grounds other than those relating solely to the jurisdiction over his person, he cannot be permitted to question the • sufficiency of the recorded entry of appeal to give the appellate court jurisdiction over his person.</p>

<p>A motion to quash the appeal.</p>

<p>A Writ of Error to the Circuit Court for Alachua County; B. A. Thrasher, Judge. '</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of DeSoto; George W. Whitehurst, Judge.</p>

<p>In an action upon a contract for the sale of certain commodities a plea averring that the plaintiff first breached the contract by refusing to accept delivery and notified the defendant that he would accept no more deliveries, is valid as averring a repudiation of the contract by the plaintiff.</p>

<p>A Writ of Error to the Circuit Court for'Duval 'County; .George Couper Gibbs, Judge.</p>

<p>An Appeal from the Circuit Court for Jackson County; C. L. Wilson, Judge.</p>

<p>1. The Constitution contains no express limitations upon the power of the Legislature to prescribe the procedure for municipal courts. Under Section 20, Article Y, special laws - may be enacted “regulating the practice” of municipal courts.</p> <p>2. Indictments for offenses against municipal ordinances are not required or permitted in municipal courts.</p> <p>3. Due process of law requires that a person charged with an “offense” against a municipal ordinance shall be duly advised of the nature and cause of the accusation against him and have reasonable opportunity to conserve his defense, whether by securing .witnesses or otherwise,-, and have it presented to and considered by the court before rendering judgment in the cause.</p> <p>4. A statutory provision that a sworn or verified complaint shall not be necessary to give the municipal court jurisdiction of offenses triable in that court, but the docket entry shall be sufficient to put the accused upon notice of the offense with which he is charged, does not deny due process of law.</p> <p>5. A docket entry in the municipal court of Tampa that contains the name of the accused with a statement of the offense charged as “having liquor in her possession in violation' of Section 18a,” is sufficient as' a compliance’ with the statute as to the charge and to afford due process of law, at least in the absence of some showing that advantage was taken of the accused in making and prosecuting the charge.</p> <p>6. Any laws that are valid and appropriate to enforce the organic prohibitions are within the power of the State; and regulations and reasonable prohibitions of the possession of intoxicating liquors are appropriate as a means to enforce the paramount organic prohibitions.</p> <p>7. The State may authorize its municipalities to enforce prohibitions by ordinances that are consistent with State and Federal law.</p> <p>8. As the Federal law is the law of the land and as it does not in essence conflict with State law, ordinances adopting the Federal law by reference, do not violate charter powers Which authorize ordinances that are consistent with State arid Federal law.</p>

<p>A ’Case of Original Jurisdiction.</p>

<p>■ A Writ of Error to a Judgment of the Circuit Court within and for the County of Manatee; O. K. Reaves, Judge.</p>

<p>A Writ of Error to the Circuit Court for Osceola County; C. 0. Andrews, Judge.</p>

<p>An Appeal from the Circuit Court for Jackson County; C. L. Wilson, Judge.</p>

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

<p>It is not error to eliminate portions of an answer that apparently have no proper hearing on the equities asserted in the bill of complaint, particularly where the matters eliminated, if shown to he admissible, may be adduced under other averments of the answer.</p>

<p>An Appeal from the Circuit Court for Calhoun County; C. L. Wilson, Judge.</p>

<p>1. The matter of excluding witnesses from the court room during the trial of a cause is one within the discretion of the trial court, and where the rule has been applied the matter of permitting a witness to testify notwithstanding the fact that he has not complied with it is also matter within the court’s discretion and will not be interfered with unless it has been made to appear that such discretion has been abused to the injury of the complaining party.</p> <p>2. The method of conducting trials, the introduction of evidence and the order in which witnesses may b.e called are matters which are left to the reasonable discretion of the trial court and every presumption is in favor of the correctness of the court’s ruling in the premises.</p> <p>3. Where the court has placed the witnesses under the rule and a witness is called who has not conformed to it, the party calling such witness should make proffer to the court of the evidence sought to be introduced through such witness, if he fails to do so the record will not disclose any injury to the party calling such witness if the court refuses to allow him to testify.</p> <p>4. In an action of assumpsit where the defendant pleaded a set off consisting of money .paid: by the defendant to a third person at the plaintiff’s request and the evidence offered in support of the plea tends to show that an agreement existed between the plaintiff and defendant under which the plaintiff was to purchase supplies from a third person and the same should be charged to the defendant, the defendant in support of his plea should know that the money paid by him was for a valid existing charge made against him by the third person under the agreement.</p> <p>5. Charges announcing a correct proposition of law applicable to the evidence are correctly given.</p> <p>6. Evidence examined and found sufficient to support the verdict.</p>

<p>1. Where a document sought to he made a part of a bill of exceptions is not incorporated into the body, of the bill and is not attached thereto or by apt language made a part thereof and so identified and authenticated by letter, number or mark mentioned in the bill as that there can be no doubt of its identity, the document cannot be considered .by an appellate court as a part of the bill of exceptions.</p> <p>2. Bills of exceptions are a creation of statute. Their function and office are to present to an appellate court exceptions taken during the progress of the trial to decisions of the trial court in matters which otherwise would remain in pais. Their integrity can be preserved only when their contents are clearly ascertainable by reference to the bills of exceptions themselves and without resort by the appellate court of proof aliunde.</p> <p>3. If a “bill of exceptions is improperly, incompletely or incorrectly made up in the trial court, corrections therein must be made there by the trial judge, and the amended record brought up by certiorari.’’</p>

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

<p>A Writ of Error to the Circuit Court for Alachua County; A. V. Long, Judge.</p>

<p>1. A plea of privilege to the venue is a plea in abatement.</p> <p>2. In a trial on a plea in abatement where the finding is for the plaintiff, the judgment should be quod, recuperet that the plaintiff recover.</p> <p>3. Where the defendant succeeds on a plea in abatement, the judgment should quash the writ or declaration.</p> <p>4. Under Section 2905, Revised General Statutes of 1920, a writ of error may be taken to an order granting a new trial on a plea in abatement to the venue.</p> <p>5. Where a person residing in one county orders goods subject to acceptance of the order in another county and such order is there accepted, the place of acceptance and not the place of the order, is the place of the contract.</p> <p>6. The trial court will not be held in error for granting a new trial to a plaintiff upon an issue found for the defendant, on a plea in abatement to the venue, where there is evidence tending to show that the cause of action accrued in the county where the action was brought.</p>

<p>1. Where a writ of replevin shows it was issued on a complaint, it will be assumed, in the absence of a contrary showing, that the required affidavit was on file, though erroneously dated, when the writ was issued.</p> <p>2. In an action of replevin, a judgment for the recovery of property may be properly rendered, even though there is no judgment for the value of the property .or for damages and costs.</p>

<p>1. An accomplice may be a competent witness and his uncorroborated testimony is sufficient to support a conviction if it satisfies the jury of guilt beyond a reasonable doubt.</p> <p>2. Where there is evidence in the record legally sufficient to support the verdict and nothing to indicate that the jury were influenced by considerations outside the evidence, a judgment of conviction will not be reversed by an appellate court although there may be conflicts in the evidence.</p> <p>3. It is not error to refuse to give requested instructions that are substantially covered by instructions given.</p> <p>4. If the verdict be conformable to the law and evidence, it will not be set aside merely because the court refused to give instructions which might have been properly given.</p>

<p>Neither at common law nor by statute can a recovery of damages for personal injuries be legally had where the injury was solely caused by the plaintiff’s own negligence.</p>

<p>An Appeal from the Circuit Court for Alachua County; J. T. Wills, Judge.</p>

<p>An Appeal from the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

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

<p>An Appeal from the Circuit Court for Hernando County; W. S. Bullock, Judge.</p>

<p>A Writ of Error to tbe Circuit Court for Palm Beach County; E. C. Davis, Judge.</p>

<p>.An Appeal’from tbe Circuit Court for Duval County.; Dapiel A. Simmon^,-.Judge.</p>

<p>An Appeal from the Circuit Court for Duval County; Daniel A. Simmons, Judge.</p>

<p>1. Trial courts exercise a broad discretion in tbe consideration of applications for continuance of cases before them, and an order granting or denying a continuance will not be reversed by an appellate court unless it is clearly shown that there has been a palpable abuse of discretion to the manifest injury of the party against whom it has been exercised.</p> <p>2. A motion to quash an indictment should be evidenced to the appellate court by the record proper and not by the bill of exceptions. When this requirement is not observed and the motion to quash is not so evidenced to the appellate court, it will not be considered.</p> <p>3. The policy of waiting .until after the trial of a case to attack an indictment or information because of insufficiency in its allegations by a motion in arrest of judgment is not favored. Defects in indictments and informations should be called to the attention of the trial court by a motion to quash or demurrer so that such defects, if any, may be corrected by the1 filing of another indictment or information before the trial of the case is entered' upon.</p> <p>4. An indictment for perjury is sufficient which is not so vague, indistinct or indefinite as to mislead the accused or 'embarrass him in the preparation of his defense or expose him to substantial danger of a new .prosecution for the same offense.</p> <p>5. Technical error committed by a trial court in the reception or rejection of evidence does not .necessarily constitute harmful error. . It is injury resulting from error that warrants an appellate court in reversing a judgment of the trial court.</p> <p>6. A judgment of conviction will not be reversed even if technical errors were committed in rulings on the admissibility of evidence or in charges given or refused where the evidence of guilt is ample and no fundamental rights of the defendant are infringed.</p> <p>7. To convict of the crime of perjury the offense must be proved by the oaths of two witnesses or by the oath of one witness and other independent and • corroborating circumstances which are deemed of equal weight with another witness. Such is the rule now well established on authority. And the element of the offense which must be so proved is the falsity of the material matter sworn to.</p> <p>8. Evidence examined and found sufficient to support the verdict of conviction.</p>

<p>This case having grown out of the same transaction and involving the same questions and having 'been tried at the same time, is affirmed upon authority of Ward v. State.</p>

<p>An Appeal from the Circuit Court for Alachua County; B. A. Thrasher, Judge.</p>

<p>A Writ of Error to the Circuit Court for Gadsden County; C. L. Wilson, Judge.</p>

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

<p>A Writ of Error to the Circuit Court' for Manatee County; 0. K. Reaves, Jndge. ■ ■■</p>

<p>A Writ of Error to the Circuit Court for Manatee 'County; 0. K. Reaves, Judge. ■</p>

<p>The language of paragraph 2 of Section 2188 of the General Statutes of 1906, relating to the judgment in an action of replevin, where" the goods have been re-delivered to the defendant upon his forth-coming bond, is mandatory, and a judgment is fatally defective which is not entered in substantial compliance with its requirements.</p>

<p>Where an alternative writ of mandamus commands a clerk of the Circuit Court to “certify” a transcript of record prepared by counsel and submitted to the clerk for authentication under Chapter 8482, Acts of 1921, and the answer to the writ avers in effect that the transcript presented for authentication, is materially incorrect in numerous stated particulars, a demurrer to the answer will be overruled.</p>

<p>1. The power exerted in imposing and collecting special assessments- for the improvement of .public streets of a city is the taxing power of the State.</p> <p>2. The only limitations upon legislative power on the subject of taxation are such as may be found in either the State or Federal Constitution.</p> <p>3. There is no express provision in the Constitution of this State upon the subject of special assessments by municipalities for local public improvements and there is no time limitation expressed in the Constitution upon the State’s power of taxation.</p> <p>4. Neither the Federal nor State Constitution expressly forbids the enactment of retroactive or retrospective laws, and such legislation is therefore valid unless invalid for some reason other than its retroactive effect.</p> <p>5. Authority for making reassessments upon abutting property, in cases where original special assessments for public improvements by municipalities have been found unenforceable because of error or irregularity, may be upheld upon the theory that the improvements tend to- enhance the value of abutting property and as a consequence there rests upon such property an economic and moral obligation to contribute its just proportion of the expense incurred in making such improvements and the failure of the -original assessment does not operate to discharge such obligation.</p> <p>6. One who purchases real estate against which an irregular and invalid hut curable special assessment for a public improvement has been made between the date of an adjudication of such invalidity and that of the enactment of a law authorizing a reassessment of such property, takes it subject to liability for such reassessment.</p> <p>7. Special assessments for public improvements may be levied upon an' executed consideration, that is to say, for a public improvement already done, and an assessment for benefits from improvements previously made does not constitute a deprivation of property without due process of law.</p> <p>8. An enforcement of the payment of a special assessment for a public improvement is not a deprivation of property without due process of law although no notice is given prior to the proceeding to enforce such assessment provided such proceeding is a judicial proceeding and due notice thereof is given to the owner of the property with full opportunity to be heard.</p> <p>9. “Authority given municipalities to impose taxes and special assessments for municipal improvements should be strictly construed especially when it adversely affects the rights of property holders to be fully advised of the burdens to be put upon them; and any material departure from the express authority is fatal to the special assessment.”</p> <p>On Petition for Rehearing.</p> <p>The validation and ratification of an assessment or re-assessment upon abutting property by a municipality for public improvements which have been found unenforcable because of some irregularity or defect of procedure is within the power of the legislature.</p> <p>On Rehearing.</p> <p>Where a statutory lien has accrued upon abutting property for street improvements, a subsequent sale of the property is subject to the lien if it has not been discharged by payment or otherwise.</p>

<p>A Writ of Error to the Court of Record for Escambia County; C. M. Jones, Judge.</p>

<p>An Appeal from the Circuit Court for Okaloosa County; A. G. Campbell, Judge.</p>

<p>A Writ of Error to the Circuit Court for Orange County; C. 0. Andrews, Judge.</p>

<p>A petition for an alternative writ of mandamus.</p>

<p>A Writ of Error to the- Circuit Court for Broward County; E. C. Davis, Judge.</p>

<p>An Appeal from the Circuit Court for Volusia County; James W. Perkins, Judge.</p>

<p>A Writ of Error to the Circuit Court for DeSoto County; George W. Whitehurst, Judge.</p>

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

<p>An Appeal from the Circuit Court for Broward County; E. C. Davis, Judge.</p>

<p>The granting of an injunction upon a bill the allegations of which are sufficient upon which to rest a prayer for such relief and upon affidavits offered in support of the application is a matter of discretion to be exercised by the Chancellor and will not be interfered with where no abuse of discretion is shown.</p>

<p>An Appeal from tbe Circuit Court for Alachua County; B. A. Thrasher, Judge.</p>

<p>An Appeal from tbe Circuit Court for Alachua County; B. A. Thrasher, Judge.</p>

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

<p>A Writ of Error to the Circuit Court for Orange County; C. 0. Andrews, Judge.</p>

<p>An Appeal from the Circuit Court for Alachua County; B. A. Thrasher, Judge.</p>

<p>The Constitution provides that “No person shall be tried for a capital crime or other felony, unless on presentment or indictment by a grand jury, except as is otherwise provided in this Constitution,” The only exception other than impeachments and military trials, contained in the Constitution, is that a Criminal, Court of Record shall have jurisdiction of all criminal cases not capital which shall arise in the counties respectively and that “all offenses triable in said court shall be prosecuted upon information under oath, to be filed by the prosecuting. attorney.” The statute provides for a change of venue from a Criminal Court of Record to the “Circuit Court of some adjoining county,” and also provides that “no person shall be tried' for felony in the Circuit Court except upon indictment found by the grand jury.” Held, That the stated statute authorizing a change of venue does not modify the statutory provision expressly forbidding a trial in the Circuit Court for felony “except upon indictment found by the grand jury,” and that under the quoted statute enacted pursuant to the Constitution, when a change of venue is had from a Court of Record to a Circuit Court, the trial in the Circuit Court must be upon indictment.</p>

<p>1. When two persons trade with each other and there is nothing in their relations of a fiduciary character representations • as to the value of property which is the subject of their trading activities, mere statements of opinion, belief or expectation, although untrue and resting upon no information, is not such a false representation as to constitute fraud and justify the recission of the sale that may have been consummated between them.</p> <p>2. In a suit for the cancellation of a conveyance of real estate upon the ground'of fraud, expressions óf opinion as to the value of the properties involved in the trade and statements as to the financial condition of the maker of the notes which are to form part of the consideration for the conveyance ' of the land and assertions as to the condition of the property which is security for such notes, although exaggerated, are not deemed to constitute such fraud as would render the conveyance of property purchased void.</p> <p>3. The burden of proving fraud is upon the party complaining.</p> <p>4. In administering the remedy of cancellation the fundamental theory on which equity acts is that of restoration. The parties should be left as nearly as possible in the position they occupied before the trade which is rescinded.</p>

<p>A Writ of Error to the Circuit Court for Palm Beach County; E. C. Davis, Judge.</p>

<p>Where a Circuit Judge issues a rule in contempt proceedings charging a person with violating an order of the court, and it duly appears that no valid order of the court or judge has been violated, further proceedings on the contempt rule may be prevented by a writ of prohibition issued by the Supreme ■ Court.</p>

<p>1. Where' testimony is offered in evidence that will have a tendency to relieve a party to a suit of the imputation of wrongdoing, of a character, which, though not material to the issue, would have a tendency to prejudice the jury against him, it is reversible error to exclude it.</p> <p>2. In a suit for professional services which terminated on a given date, it is reversible error to permit the introduction of a letter written -thereafter, relating solely to an offer to render future services where such letter contains matter that would have a tendency to prejudice the jury against the writer, and serve no purpose in throwing light on the matters in litigation.</p> <p>3. If reasonable men may differ as to the existence of facts' establishing an ultimate fact, or as to inferences to be drawn from conceded facts, the case should 'be submitted to the jury.</p>

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

<p>A Writ of Error to a judgment of the Circuit Court within and for the County of Santa Rosa; A. G. Campbell, Judge.</p>

<p>A Writ of Error to the Court of Record for Escambia County; C. Mi Jones, Judge.</p>

<p>A Writ of Error to the Circuit Court for DeSoto County ; George W. Whitehurst, Judge</p>

<p>An Appeal from the Circuit Court for Calhoun County; C. L. Wilson Judge.</p>

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

<p>1. Where a woman voluntarily leaves her home pr place of residence on invitation of a man to take a walk or a ride, and during their absence, they indulge in sexual intercourse, the man’s part in the act does not bring him within the provision of Section 5413, Revised General Statutes of 1920, against enticing a female to come into the State or to leave her home for immoral purposes.</p> <p>2. The words used in the statute “leave her home or other place where she may be residing,” taken in connection with the immoral acts designated in the statute, contemplate more than a temporary absence for a walk or ride, taken cum animo 'revertendi.</p> <p>3. The words of the statute “and for other immoral purposes” mean acts as “prostitution” “concubinage” or “to enter a house of prostitution.”</p> <p>• 4. Section 5413, Revised General Statutes of 1920, does" not relate to or include casual acts of fornication, the punishment for which is provided for in Section 5408, Revised General Statutes of 1920.</p>

<p>1. In an action to recover damages for personal injuries -the plaintiff 'can recover only upon tlie case made by his decla1 ration. ■</p> <p>2. In an action for damages for personal injuries resulting from burns caused by an alleged defective blowtorch furnished' by the defendant corporation to one of its employees, the allegation that the instrument was defective and unsafe in that it had a latent tendency to allow ignited gasoline to escape, is not proved by showing that while the instrument was being used and operated by the plaintiff the threaded end of the needle valve was broken from the conduit through which the heated or vaporized gas passed into the tube.</p>

<p>1. Actionable negligence arises where injury to one person is proximately caused by the failure of another to exercise such reasonable care and diligence as should have been exercised under the circumstances in view of the relation of the parties to each other at the time, and the complaining party is not guilty of such contributory negligence as bars recovery under the law applicable to the case.</p> <p>2. The use of a dangerous agency requires the exercise of care commensurate with the nature and uses of the agency and the conditions and circumstances under which it is operated or utilized.</p> <p>3. In an action for a negligent injury, it may be necessary only to allege ultimate facts showing the relation of the parties and the circumstances 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 negligent act was negligently done or omitted.</p> <p>4. An ordinary log or tram road operated by a lumber company solely in transporting logs from the forest to a sawmill, is not within the provisions of the statute prescribing the liability of railroad companies for damage done to persons or property by the operation of trains.</p> <p>5. At common law contributory negligence bars a recovery of damages for a negligent injury; and this rule has not been changed by statute except as to railroad companies and in favor of employees engaged in certain hazardous employments not including sawmill operations.</p> <p>6. Contributory negligence, being an affirmative defense, need not be negatived by the .plaintiff; but if substantial contributory negligence appears in the case made by the plaintiff, he cannot recover in cases controlled by the common law.</p> <p>7. Where a decedent could have maintained an action for injury to himself had he survived the injury, his administrator would have a right of action under the statute.</p> <p>8. While a log train is not a railroad, it is operated by rolling stock, motive power and road bed utilities similar to railroads, and care commensurate with the dangers incident to its operation is required by law of those engaged in its operation, the principle of respondeat superior being applicable as in other cases.</p> <p>9. The declaration alleges a cause of action and the demurrer ' thereto should have been overruled.</p>

<p>A Writ of Error to the Circuit Court for Polk County; John S. Edwards, Judge.</p>

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

<p>An Appeal from tbe Court of Record for Escambia County; C. Moreno Jones, Judge.</p>

<p>A Writ of Error to the Circuit Court for Duval County; George Couper Gibbs, Judge.</p>

<p>1. In construing a contract it is not enough to look to an isolated phrase or paragraph of. the contract. The intent of the parties with respect to any feature of the contract must be determined from an examination of the whole of the contract.</p> <p>2. Where a contract expressly provides that it is subject to the terms and conditions of other contracts which are clearly designated, such other contracts must be considered in determining the intent of the parties to the transaction.</p> <p>3. The primary consideration in the construction of a contract is the intention of the parties thereto, and this intention must be gathered from an examination of the whole instrument, which must be so construed as to render all its .provisions consistent and harmonious, if this can be done.</p> <p>4. If matter contained in an answer in a chancery cause is relevant and can have any influence upon the decision of the subject matter of the controversy, it is not impertinent and will not be stricken.</p>

<p>1. The common law afforded no right of action to any one for ■ damages resulting from the death of a person caused by the wrongful act or default of another.</p> <p>2. The statute makes a corporation liable for the death of a person caused by the wrongful act, negligence, carelessness or default of its agents, and provides that if there be no widow or husband or minor child or persons dependent on the decedent for support “then the action may be maintained by the executor or administrator of the person killed * * * and in every such action the jury shall give such damages as the party entitled to sue may have sustained by reason of the death of the party killed.”</p> <p>3. When an administrator has a right of action under the statute imposing a liability for the wrongful death of a person he may recover the value at the decedent’s death of the prospective earnings and savings that from the evidence ' 'could' reasonably have been expected' but for the death of the decedent.</p> <p>4. In an action brought under the statute by an administrator to recover damages for the wrongful death of 'his decedent, where liability of the defendant is shown, the jury have no discretion in assessing the damages sustained, but among other elements the jury may consider evidence as to the age, probable duration of life, habits of industry, means, business, earnings, health and skill of the deceased, and his reasonable future expectations. If the evidence shows the decedent’s health, habits or other conditions of life to be such that he had no reasonable future expectations of an estate, the recovery would of course be merely nominal.</p> <p>5. In an action for the wrongful death of a person brought by his administrator to recover damages for the loss of a prospective accumulated estate, the amount of the recovery is not the value of the decedent’s life to any one or to the public, but the recovery is limited to the present value of an estate which the proofs show the decedent may reasonably have been expected to earn and save had he lived, where the accumulation of an estate by the decedent may reasonably have been expected, and the present value thereof can be ascertained with reasonable certainty from truthworthy evidence upon all matters affecting the probabilities as to life expectancy, physical condition, earning capacity and opportunities, habits of life and of accumulation and other pertinent circumstances.</p>

<p>A Writ of Error to the Circuit Court for Lee County; George W. Whitehurst, Judge. •</p>

<p>An Appeal from the Circuit Court for Palm Beach County; E. C. Davis, Judge.</p>

<p>A Writ of Error to the Circuit. Court for Pinellas County ; O. K. Reaves, Judge.</p>

<p>A Writ of Error to the Circuit Court for Alachua County; W. S. Broome, Referee.</p>

<p>A Writ of Error to the Circuit Court for DeSoto Coun: ty; George W. Whitehurst, Judge.</p>

<p>In an action to recover damages to an automobile caused by collision with a street car, where tile evidence clearly shows that negligence of the plaintiff’s employee in operating the automobile contributed to the injury, and the judgment against the defendant is for full damages, a remittitur will be permitted as an alternative for a reversal.</p>

<p>A Case of Original Jurisdiction.</p>

<p>1. While mandamus may be invoked to compel a corporate entity to perform a specific legal duty to the public, the duty must clearly appear and the relator must show a right to the writ.</p> <p>2. The ¡átate officials who comprise the State Board of Comrhissioners of Everglades Drainage District have by statute stated corporate functions and authority; and their duties are confined to the limits of the statutory powers conferred upon them.</p> <p>3. Where the duties of a State corporate entity are defined by statute and not by the principles of the common law, and an alternative writ of mandamus commands such corporate entity to perform an act not authorized by the statute from which the powers and duties of the corporate entity are derived, the alternative writ should be quashed on appropriate procedure.</p>

<p>An Appeal from the Circuit Court for Osceola County; C. 0. Andrews, Judge.</p>

<p>An instruction that requires the explanation given by a party found in possession of goods recently stolen, as to how he acquired such possession, to be satisfactory, as well as reasonable, before such explanation shall shift the burden on the state of proving the falsity thereof, is erroneous. The correct rule is that where a party is found in possession of goods recently stolen and directly gives a reasonable and credible account of how he came into such possession, or such an account as will raise a reasonable doubt in the minds of the jury, who are the sole judges of its reasonableness, probability and credibility, then it becomes 'the duty of the state to prove that such account is false, otherwise there should be an acquittal. Bellamy v. State, 35 Fla. 242, 17 South. Rep. 560.</p>

<p>A Writ of Error to the Circuit Court for Madison County; M. F. Horne, Judge.</p>

<p>An Appeal from the Circuit Court for Alachua County; A. Y. Long, Judge.</p>

<p>An Appeal from the Circuit Court for Pinellas County; O. K. Reaves, Judge.</p>

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

<p>A Writ of Error to the Circuit Court for Hardee County; George W. Whitehurst, Judge.</p>

<p>In a suit in tile name of a person by his son as next friend, alleging that the father is mentally incompetent to manage his own affairs and that by undue influence exerted by his wife he has conveyed large portions of his property to her; when it appears from the evidence that the father is fully capable of protecting and controlling his own business affairs, and that his dealings with his property are his own competent disposals, no undue influence being shown; the. bill of complaint was property' dismissed. ‘ , ■’</p>

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

<p>Where in probate proceedings an appeal taken to the Circuit Court is properly dismissed without prejudice because the statutory procedure was not observed, and an appeal taken to the Suprehie Court from such order of dismissal without prejudice is manifestly without substantial merit, the appeal so taken to the Supreme Court will be dismissed.</p>

<p>A motion to strike cross assignment of error.</p>

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

<p>A Writ of Error to the Circuit Court for DeSoto County; George W. Whitehurst, Judge.</p>

<p>An Appeal from the Circuit Court for Pinellas County; O. K. Reaves, Judge.</p>

<p>A Writ of Error to the Circuit Court for Suwannee County; C. L. Wilson, Judge.</p>

<p>A Wi-it of Error to the Circuit Court for Holmes County; D. J. Jones, Judge.</p>

<p>1. A motion to strike evidence is properly overruled when it includes legal and relevant testimony. .</p> <p>2. A motion to strike testimony must not be too broad. Where part of the testimony so sought to be stricken is. clearly proper, the motion may for that reason be denied.</p> <p>3. A motion in arrest of judgment reaches only such errors as appear upon the record and when addressed to the indictment or information is effective only when they wholly fail to charge any offense or their allegations are so vague and uncertain as to embarrass the defendant in the preparation of his defense or expose him after acquittal or conviction to substantial danger of another prosecution for the same offense.</p> <p>4. A judgment of conviction will not be reversed by an appellate court although there may be conflicts in the evidence, where there is evidence in the record legally sufficient to support the verdict and nothing to indicate that the jury were influenced by considerations outside the evidence.</p>

<p>An Appeal from the Circuit Court for Dade County ;• H. Pierre Branning, Judge.</p>

<p>1. Where a demurrer is addressed to a declaration in its entirety, which declaration contains several counts, if any one count is good the demurrer will he overruled. In an action upon ah injunction bond for breach of the condition, which is that if the injunction be dissolved and the bill' be dismissed, it is no defense that the court overruled a motion- to dissolve the injunction, but later upon the merits dismissed the bill and dissolved the injunction.</p> <p>2. Under Section 1481, General Statutes 1906 Florida Compiled Laws 1914, if the judge of a circuit where a cause is pending becomes ill and unable to attend to any of the duties pertaining, to his office the issues in the cause may be made up, and testimony taken- and the cause disposed of under the orders of the Judge of another circuit. A hearing by the Judge of another circuit under this section is not a change of venue.</p> <p>3. Where in a chancery cause the Judge of the Circuit where the same is pending becomes ill and unable to attend to any of the duties pertaining to his office the cause may be -heard by the Judge of another circuit upon application by either party.</p> <p>4. Where in an action upon an injunction bond for breach of condition the declaration alleges that the Judge of the Circuit in which the chancery cause was pending became ill and was unable to attend to the duties of his office and the cause was heard by the Judge of another Circuit a demurrer to the declaration admits the conditions necessary to authorize the Judge of the other circuit to hear and determine the cause.</p> <p>5. A Judge of a circuit who is disqualified in an action pending in his circuit and certifies to his own disqualification should make no further order in the cause other than the one of transfer but an order to the effect that the cause be referred to some other Judge having jurisdiction is proper. Section 1337, General Statutes 1906, prohibits any Judge from presiding in any cause in which he is interested or to which he is a party or in which he would be excluded from being a juror by reason of interest, consanguinity or affinity to either of the parties. Section 1339, General Statutes, provides that the Judge so disqualified shall retire of his own motion and without waiting for an application to that effect. A Judge who was an attorney before his election to the bench and was professionally connected with the case pending in the circuit of which he is Judge is deemed to be disqualified.</p> <p>6. Section 1481, General Statutes 1906, requires any other Judge of a court of the same jurisdiction as the court in which the case is .pending on the application of either party to perform such duties and hear and determine alb such matters as may be submitted to him. Nothing in the statute requires the parties to agree upon a Judge to try the cause nor that it shall be transferred to the circuit next adjoining nor to any other circuit.</p> <p>7. It is no defense to an action upon an injunction bond that its condition is broader than the terms of the order for the injunction require.</p> <p>8. A plea which sets up a contract different from the recitals of the bond is bad. The liability of the obligors is determined by the bond and not by the court order.</p> <p>9. Indemnity for the breach of the bond will be allowed so far as the condition is legal but not beyond what could be recovered if the bond conformed to the order. Dissolution of the injunction upon the merits 'Operates as an adjudication that it was improperly issued.</p> <p>10. In an action upon a bond for a breach of its condition where the declaration alleges that the injunction was dissolved and the bill dismissed, which language followed the condition of the bond, a plea which averred that the injunction was not dissolved upon motion is bad. The plea should meet the allegation of the declaration squarely. The plea should be distinctively responsive not evasive and argumentative. If the plea has two intendments upon its face that which is most unfavorable to. the party pleading will be taken.</p> <p>11. In an action upon an injunction bond for breach of condition where the declaration alleges that the Judge of the court in which the chancery cause was pending was ill and. unable to perform the duties of his office and the cause was heard and determined by the Judge of another circuit a plea which avers that the Judge who dismissed the chancery-action was without jurisdiction to make any order in the cause is bad because it fails to aver any fact showing the lack of jurisdiction of such Judge.</p> <p>12. A plea to an action upon an injunction bond for breach of condition which 'merely avers that certain items of expense and charges to which the plaintiff alleges that he was subjected by the issuing of the injunction is not a plea in bar. Such plea goes only to the reduction of damages. That damages are claimed in excess of the liability on the bond sued upon is immaterial.</p> <p>13. Pleas to an action upon an injunction bond for breach of condition which aver that the items claimed by way of damages are excessive are not pleas in bar and such averments of fact may be shown in evidence under the general issue in reduction of damages.</p> <p>14. A plea which amounts merely to an averment of a conclusion of law is bad.</p> <p>15. A plea to an action upon an injunction bond for breach of condition which undertakes to set up a defense that the Judge of the court who made the order dissolving the injunction was without authority to make such order is bad. . The plea should have averred the facts or circumstances under which the Judge made the order of dissolution so that it might appear upon the face of the plea why the court was without jurisdiction.</p> <p>16. In an action to recover damages for the breach of condition of an injunction bond the parties are bound by the terms of their written contract and will not he permitted to set up a different contract to the one which they signed and sealed as a defense. The obligors are estopped to deny recitals of the bond.</p> <p>17. Where a defendant in a civil action desires to file amended pleas to the declaration after the time fixed by statute for the filing of pleas an order of court should be obtained permitting him to amend as desired.</p> <p>18. Motions made in a cause are not evidence of the facts recited therein.</p>

<p>An Application for a supersedas order.</p>

<p>1. In extradition proceedings it is not imperative that the affidavit charging the offense shall show on its face that it was made before a magistrate, but .the Governor must have proof of that fact before him, and when extradition is resisted, the fact that the affidavit was made before a magistrate may be shown by the sheriff’s return on habeas corpus proceedings.</p> <p>2. The designation, “Magistrate,” includes city judge and esc officio justice of the peace.</p> <p>3. The sufficiency of a complaint is not to be tested in habeas corpus proceedings by the law governing criminal prosecutions in the State from which a fugitive from justice is sought to be extradited.</p> <p>4. In determining if the affidavit on indictment charging a fugitive from justice with a crime is sufficient, it is only necessary to consider whether it shows satisfactorily that the fugitive has been in fact, however, inartificially, charged with crime in the State from which he has fled.</p> <p>5. In determining if a petitioner in habeas carpus proceeding is a fugitive from justice the court may consider the statute of limitations of the demanding State, to establish the fact that he is not a fugitive from justice.</p> <p>G. A person who is not subject to prosecution for crimes in the demanding State is not a fugitive from justice; and where there is no doubt of the applicability of the statute of limitations to the offense with which he is charged, he should he discharged on habeas corpus proceedings.</p> <p>■ 7. Where statutes of limitations similar to that of the demanding State have been differently construed by the Supreme Appellate Courts of other states, and there has been no construction of the statute of limitations of the demanding State by its court of last resort, this court will not undertake to construe it but will leave to the demanding State the construction ,of its own statute.</p> <p>.8 The identity of the person taken in custody with the person who is claimed as a fugitive from justice must be clearly established, and that the person arrested and the person named in the requisition are in fact one and the same individual.</p> <p>9. Evidence adduced before the Circuit Judge who heard the application for discharge under habeas corpus proceedings examined, and found sufficient to establish the identity of the person held in custody with the person named in the requisition.</p>

<p>An Appeal from the Circuit Court for Broward County; E. C. Davis, Judge.</p>

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

<p>A Writ of Error to the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>1. Where an indictment found in D. County charges that a crime was committed in that county, and the portion of D. County in which the crime is alleged to have been committed is afterwards made a part of H. County, and pursuant to the statute creating H. County out of a portion of D. County, the indictment is duly sent to H. County, trial on the indictment may be had in H. County by a Judge duly assigned to act in the place of the resident Judge, and the organic provision that the “accused shall have the right to a. *. * * trial * * * in the county where the crime was committed” is not thereby violated.</p> <p>2. Where a plea in abatement to an indictment has been sustained, a. demurrer to a plea in abatement to a subsequent indictment setting up that the court charged the grand jury “to re-investigate the case of the State of Florida against" the defendant was properly sustained.</p> <p>3. Upon a prosecution for rape alleged to have been committed “forcibly and against the will of” the prosecuting witness, reasonable latitude should be allowed in adducing evidence to test the probative force of the testimony of the prosecutrix as to the nature and extent of the force used and as to whether consent was or was not ultimately yielded, since the accomplishment of the act by force and against the will of the female are the essential elements in the crime, and where no other person was an immediate witness to the act, the testimony of the prosecutrix should be rigidly scrutinized to avoid an unmerited conviction for a capital offense.</p> <p>4. Upon a full consideration of the entire record in this case it appears that a new trial on the essential facts constituting the capital offense charged, will best subserve the ends of justice.</p>

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

<p>An Appeal from the Circuit Court for Duval County, Daniel A. Simmons, Judge.</p>

<p>1. At common law it is necessary that an indictment allege ‘ a definite date upon which the alleged crime was committed.</p> <p>2. There is no statute in this State expressly changing the rule at common law requiring an indictment to state a definite date upon which the alleged crime was committed.</p> <p>3. Except in those cases where the allegation and proof of the precise time are material, a different date from that alleged in an indictment before the return of the indictment and within the statute of limitations may be proved at the trial as the date upon which the alleged crime was committed.</p> <p>4. An indictment charging an offense to have been committed upon an impossible date is defective.</p> <p>5. There is no- such date in the calendar as September 31, and an indictment charging an offense to have been committed on such date is defective and a motion in arrest of judgment upon a conviction on such indictment seasonably made should be granted.</p>

<p>1. When an offense is alleged to have been committed on August 19, 1919, and the information is filed August 18, 1921, the statutory bar of two years had not run.</p> <p>2. An information charging embezzlement of “lawful money of the United States of America,” is sufficiently descriptive, and being sufficient to inform the accused of “the nature and cause of the accusation against him," it is not subject to a motion to quash or in arrest of judgment.</p> <p>3. The amendment of a criminal statute does not, under Section, 32 Artiicle III, Constitution of 1885, affect the prosecution or punishment of a crime committed before the amendment became effective, but as to such crimes the original statute remains in force.</p> <p>■4. In a prosecution for embezzlement of money the evidence should show that the money in fact came into custod'y or possession of the defendant, or under his control or was converted or secreted or withheld by defendant with intent to embezzle as may be alleged.</p>

<p>1. The right of a father to appoint a testamentary guardian of the person and estate of his minor child did not exist at common law but is of statutory origin.</p> <p>2. Powers of testamentary guardians are referable to and dependent upon the statutes under which their appointment is authorized and by which their powers are defined.</p> <p>3. Under the statute (Sec. 3964, Rev. Gen. Stat. of Fla.), a testamentary guardian in this State may have and exercise such “power over the child and over the property of the child” and is subject “to the same liability as in the case of other guardians.”</p> <p>4. Testamentary guardians may not, by provisions of the will appointing them, be given power exempting them from mandatory statutory provisions regulating the conduct of sales of real estate of minors made by “other guardians.”</p> <p>5. A suit for partition cannot be resorted to as a substitute for the action of ejectment nor used for the sole purpose of testing a legal title or trying an issue as to it.</p>

<p>In an action on the case for damages, if the declaration makes a case entitling the plaintiff to any recovery whatever, even though it be only nominal damages, a demurrer will not lie thereto because it claims other or greater damages than the case made legally entitles the plaintiff to recover; demurrer hot being the proper way to test the extent of the recovery to be had. Such questions are properly raised and settled by objections to testimony at the trial, or in the shape of instructions to the jury as to the law applicable to the points raised.</p>

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

<p>A Writ of Error to the Circuit Court for Manatee County; M. A. McMullen, Judge.</p>

<p>An Appeal from the Circuit Court for Clay County; George Couper Gibbs, Judge.</p>

<p>In an action to recover damages for personal injuries, where liability appears, but the damages awarded in the judgment are manifestly excessive, a remittitur will be permitted to be entered, and in default thereof a new trial will be granted by the appellate court. And this may be done even though the trial court had permitted a remittitur of a part of the amount found by the verdict, and had rendered judgment upon the remittitur for an amount less than that stated in the verdict.</p>

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

<p>1. Prospective jurors are examined on their voir dire for the purpose of ascertaining if they are qualified to serve, and it is not proper to propound hypothetical questions purporting to embody testimony that is intended to be submitted, covering all or any aspects of the case, for the purpose of ascertaining from the juror how he will vote on such a state of the testimony.</p> <p>2. The examination of persons called to act as jurors is limited to such matters as tend to disclose their qualifications in that regard, under the established provisions and rules of law; and hypothetical questions are not competent, when their evident purpose is to have the jurors indicate in advance what their decision will be under a certain state of the evidence, or upon a certain state of facts, and thus possibly commit them to certain ideas or views when the case shall be finally submitted to them for their decision.</p> <p>3. Where a question propounded to a witness does not indicate the answer, the proper practice is to apprise the court of the answer sought to be elicited, so that he. may determine its materiality and relevancy.</p> <p>4. The mental capacity of “a minor, not married” is not involved in applying Section 6028, Rev. Gen. Stats., providing for certain procedure in the trial of such minor.</p> <p>5. A sentence does not have to contain a recital of all the proceedings had in the cause prior to its imposition.</p> <p>G. The failure in the sentence to name the crime for which the prisoner is sentenced, may be supplied by reference to. the rest of the record.</p> <p>7. It is not essential to the validity of a sentence that it recite that the prisoner had “been tried and found guilty by a jury.”</p> <p>8. The sentence or judgment “that you, A. B., be delivered by the sheriff of Union County, to the proper officer of the State penitentiary, there to be confined at hard labor,” etc., is not defective because it does not mention Florida in naming the- penitentiary where the prisoner is to be confined, where the record shows that the defendant was tried and convicted in the State of Florida.</p>