Lovett v. State

• Decision Date: 09 April 1892
• Citation: 11 So. 172,29 Fla. 356
• Parties: LOVETT v. STATE.[1]
• Court: Florida Supreme Court

11 So. 172

29 Fla. 356

LOVETT v. STATE.^[1]

Florida Supreme Court

April 9, 1892

Error to circuit court, Duval county; W. B. YOUNG, Judge.

Dave Lovett was convicted of murder, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. It is indispensable to a legal conviction of a defendant on trial for murder that he should be personally present in court during the trial, and is likewise indispensable that the record proper of the trial, as distinguished from the bill of exceptions, shall show such personal presence. Presence by an attorney is not sufficient, nor is it sufficient that a bill of exceptions shows presence in person, where the record proper does not show personal presence.

2. Personal presence at the time of the trial cannot be inferred from the express statement in the record proper of such presence at the time of the sentence, where the expression of the record as to the trial is that the defendant's presence on the trial was by his attorney.

3. It is not the purpose or office of bills of exception to provide a new and optional or substitutional mode of making a record or other legal evidence of such steps or proceedings in a cause as, at the time of the institution of these bills, were set forth in and shown by the ordinary record. These bills are records of proceedings in the trial court, which do not appear in its ordinary record, and they are made, not as a basis of any further proceeding in that court, but for the purpose of reviewing in the appellate court rulings of the former court excepted to as erroneous in law.

4. Where the record proper of a trial for murder does not show an arraignment of the prisoner, or otherwise show his personal presence in court prior to his being sentenced, but shows that at the trial he 'came' by his attorney and then shows that at the time of being sentenced he came again in his own proper person, and attended by his counsel it is not sufficient evidence of, and will not support a conviction of, murder; and the deficiency is not supplied, or the defect cured, by the bill of exceptions showing that he was present at the trial in person and by attorney.

5. That a record entry to the effect that the jury 'were duly elected, tried, and sworn the truth to speak on the issue joined,' does not purport to set out the oath as it was actually administered, but only to show that the jury were in fact sworn properly, and is a sufficient entry, is settled law in Florida.

6. It is not proper, under our statute, for the sentence in a capital case to state the place of execution. Whether or not it is ground even for remanding the cause for a new sentence not decided. It is not ground for a new trial.

7. The words, 'it is therefore considered by the court,' in the sentence in a criminal cause, are the approved formal expression and judgment of the court pronouncing the sentence of the law, and are not a mere recital by the clerk of what the court did.

COUNSEL

Robert S. Cockrell, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

The other facts fully appear in the following statement by RANEY C.J.: The plaintiff in error was indicted at the fall term, A. D. 1891, of Duval circuit court, for the murder of March Scroggins. The indictment appears to have been presented by the grand jury in open court, November 20, 1891, and, as the transcript of the record reads, exclusive of the bill of exceptions: 'Afterwards, to-wit, on the 10th day of December, one thousand eight hundred and ninety-one, at a term of the circuit court of the fourth judicial circuit in and for the county aforesaid, held at the city of Jacksonville, came the said plaintiff and the said defendant, by their respective attorneys, and thereupon came a jury, to-wit, [giving their names,] who, being duly elected, tried, and sworn the truth to speak upon the issues joined, having heard the evidence, the charge of the court, and the argument of counsel, and having considered of their verdict, upon their oaths do say,' (giving the verdict, which is one of 'guilty,' as charged in the indictment.) The transcript then states that 'upon the rendition of which said verdict the defendant, by his attorney, entered a motion in arrest of judgment, in the words and figures following.' This is followed immediately by a motion for a new trial, dated December 11, 1891, which, after giving the title of the cause, reads, 'Comes now the defendant by his attorneys,' giving their names, 'and moves the court to grant him a new trial on the following grounds,' which are set out. This motion was 'overruled and denied,' the defendant excepting, and upon the same day, December 14, 1891, it is stated by the record: 'Comes again the said defendant in his own proper person, and attended by his counsel; and the defendant, being asked what he had to say why sentence of the law should not be pronounced upon him, saying nothign sufficient, it is therefore considered by the court that the said Dave Lovett be remanded to prison, there to remain until such day as the governor of the state of Florida shall by his warrant appoint, and on the day and at the time appointed that he be taken by the sheriff of this county to the place of execution within the inclosure of the jail of Duval county, and then and there be hung by the neck until he be dead.'

It is claimed in behalf of the plaintiff in error that this record does not show that the prisoner was present in his own proper person on the trial of the cause, or in fact at any time before the sentence, and that this defect in the record proper necessitates a reversal, notwithstanding the showing made by the bill of exceptions of the prisoner's personal presence.

This alleged defect in the record proper, the attorney general urges, is cured by the bill of exceptions, which shows that on the 10th day of December, 1891, the cause came on to be heard in said court, and thereupon 'came the said parties in person, and by their respective attorneys, and thereupon the issues joined between the said parties came on to be tried; and the jurors of the jury aforesaid, whereof mention is within made, being called, likewise came, and were sworn to try the said issues in manner aforesaid joined;' the bill showing the examination of witnesses of the state and of the defendant, and the statement of the defendant in his own behalf, and the charges of the judge to the jury, and the rendition of the verdict on the same day, and then that 'the said defendant, by his attorneys, on the 11th day of December, A. D. 1891, at the term of court aforesaid, did enter in writing and submit to the said court his motion that a new trial be granted for reasons following,' setting out the motion, and shows a refusal of the same, and that the defendant, by his attorneys, excepted to such ruling; the bill of exceptions being duly signed and sealed by the circuit judge.

RANEY, C.J., (after stating the facts.)

That it was necessary for the defendant, who was on trial for murder in the first degree, and was convicted of it, to be personally present during the trial and preceding the sentence, as well as when sentenced, is, of course, not denied, (Holton v. State, 2 Fla. 476, 500; Gladden v. State, 12 Fla. 562, 577; Irvin v State, 19 Fla. 872, 891; Sneed v. State, 5 Ark. 431;) and that it is necessary that the record should show his personal presence is equally unquestionable, (1 Chit. Crim. Law, 337, 411, 414; Bish. Crim. Proc.§ 1180; section 11, Bill of Rights, Const. 1885.) It is by this record, as it stands in the trial court, that the appellate courts must decide whether there has been a lawful trial and conviction. Though it may be regarded as settled that, where the personal presence of the accused is necessary in point of law, the record must show it, yet it does not seem necessary that there should be in the record an express statement of his presence at every stage of the cause to which such presence is essential. The decision in Irvin v. State, supra, is that, where the record shows that the prisoner was duly arraigned, was present at the trial and at the sentence, and no interval or adjournment of the court appears between the commencement of the trial, the verdict, and the judgment, the presumption is that he was in court during the whole time; and in Brown v. State, 29 Fla. ----, 10 South. Rep. 736, it is said it is sufficient if the presence appear from the record by necessary and reasonable implication. In Jeffries v. Com., 12 Allen, 145, 154, the record showed personal presence at the arraignment and at the sentence, and it was held that it was not necessary that it should state in direct terms that the prisoner was present at the rendition of the verdict, and during all the previous proceedings of the trial, and although such presence was in fact essential. In a case in which the record stated that the prisoner came into court at the commencement of the trial, on March 7th, and was at the bar when the jurors were sworn, and then set forth that, forasmuch as it appeared that justice could not be done if the court should proceed without interruption upon the trial, the same was continued by adjournment from day to day till the 26th of March, when the jury rendered their verdict, and also showed that, when asked if he had anything to say why sentence should not be pronounced on him, he announced that he had nothing further 'than as before he had said,' the court of appeals of New York held it sufficient, as stating all that was necessary to warrant the inference that the prisoner was present during the entire sitting of the court from the calling of the jury to the rendition of the verdict. It is said in the opinion: 'The allegations of a continuance of the trial sufficiently...