Reed v. State

• Decision Date: 18 June 1927
• Citation: 113 So. 630,94 Fla. 32
• Parties: REED et al. v. STATE.
• Court: Florida Supreme Court

113 So. 630

94 Fla. 32

REED et al. v. STATE.

Florida Supreme Court

June 18, 1927

Rehearing Denied July 18, 1927.

Error to Circuit Court, Pinellas County; Freeman P. Lane, Judge.

Arthur Reed, alias Arthur Davenport, and Louis Thomas, alias Louis Curtis, were convicted of first degree murder, and they bring error.

Affirmed.

Syllabus by the Court

SYLLABUS

Statute not specifying time for authentication of bills of exception must be construed with circuit court rule requiring authentication within term or within additional time fixed by term order (Rev. Gen. St. 1920, § 2906; rule 97 of circuit court practice). Section 2906, R. G. S. 1920, relating to bills of exception, does not specify the time for authentication, but must be construed in connection with rule 97 of circuit court practice, which provides that bills of exceptions shall be made up and signed during the term of the court at which the verdict is rendered or trial had, or within such additional period of time as may be allowed by special order made during such term.

Plaintiff in error must prepare and present bill of exceptions and bystanders may authenticate it if court refuse (Rev. Gen. St 1920, § 2906; rule 97 of circuit court practice). It is the duty of the plaintiff in error to properly prepare and present the bill of exceptions as the rules direct, and under the statute, if the judge refuses to sign such a bill of exceptions when so presented within the time allowed, it shall be lawful for three bystanders to authenticate the same as provided by the statute.

On failure to show judge's refusal to sign bill of exceptions presented, bystanders' bill of exceptions cannot be considered on appeal, though it appears at length in transcript (Rev. Gen. St. 1920, § 2906; rule 97 of circuit court practice). When it does not appear that the bill of exceptions was presented to the judge as required by the statute and that he refused to sign it, the condition precedent required by the statute for establishing a bill of exceptions by the oath of three bystanders is not complied with; hence the so-called bill of exceptions is a nullity and cannot be considered by this court, even though it appears at length in the transcript, certified by the clerk of the trial court.

Right to appeal from nisi prius court is created by law, and party must first comply with conditions precedent and regulatory. The right of appellate review of a case which has already been tried in a nisi prius court is not a natural, absolute or unqualified right of the individual, but is a right created by law, either organic or statutory, to enjoy the benefit of which a party must first comply with the conditions precedent and regulatory required by law.

Bills of exceptions in criminal cases were unknown to common law and not provided for in civil action until statute of Edward I; bill of exceptions must be presented and authenticated pursuant to statutes or rules of court, or they do not become part of record (Rev. Gen. St. 1920, § 2906; rule 97 of circuit court practice). Bills of exceptions in criminal cases were unknown to the common law and were not provided for in civil actions until the statute of Edward I. Being the creature of statutes and rules of court, the doctrine has long obtained that bills of exceptions must be presented and authenticated as required by statutes and rules of court, or they do not become a part of the record.

Trial courts are presumed to perform duty, and their judgments are presumed just and lawful; burden is on appellant from conviction to bring authentic and truthful transcript of record in trial court, including bill of exceptions if one is desired. The presumption is that our trial courts perform their duty and that their judgments are just and lawful. Error is never presumed, and, where a party deems that error has been committed against him and desires appellate review the burden is upon him to bring to the appellate court an authentic and truthful transcript of the record in the trial court, including a legal bill of exceptions as a part thereof when one is desired.

Parties seeking to review conviction by writ of error are not entitled to assign error on denial, subsequent to judgment of petition for writ of error coram nobis; to review denial of writ of error coram nobis after conviction, separate and independent writ of error must be sued out of Supreme Court. Plaintiffs in error, seeking by writ of error to review in this court a judgment of conviction in the court below, are not entitled to assign error upon denial by the court below, subsequently to such judgment, of a petition for writ of error coram nobis. To obtain a review of the court's judgment denying such writ of error coram nobis, a separate and independent writ of error would have to be sued out from this court.

Verdict convicting of first degree murder as charged in first and third counts of indictment, whose first count charged killing with steel bullet and third count charged killing with lead bullett, held not fatally defective. A verdict is not invalid on the ground that it is fatally contradictory, in that it found the defendants guilty of murder in the first degree as charged in the first and third counts of the indictment, the first count of which charged them with having killed the deceased with a steel bullet, and the third count charging the killing to have been with a leaden bullet.

Grand jury's action is ex parte and its function is inquisitorial and accusatorial; speed or promptness of grand jury's investigation and indictment is not likely to prejudice defendant or prevent fair trial; calling special term of court and action by grand jury three weeks and one day after alleged murder held not prejudicial. The action of a grand jury is ex parte, and its function is inquisitorial and accusatorial in character. It is not, therefore, the speed or promptness of grand jury investigation and indictment which is likely to prejudice the case of a defendant or prevent him from having a fair and impartial trial before a jury of his peers.

When trial takes place before defense can be prepared properly or during public excitement, refusal of postponement is good ground for objection. It is when the trial before a petit jury is forced upon a defendant before he has had time to properly consult with his counsel, secure his witnesses, and prepare his defense, or in cases where great popular excitement and indignation have been aroused, or when compelled to go to trial so soon after the commission of the crime charged as to make a calm, dignified, fair, and impartial trial impossible--it is then that the accused has good grounds for objection and exception when his prayers for postponement and allowance of more time go unheeded by the trial court.

Where defendant's counsel announced ready for trial, trying murder case one day after indictment and arraignment was not error. When a capital case is called for trial, and the defendants represented by counsel announce ready for trial without asking for the allowance of any further time the presumption is that no further time is needed or desired, and the trial court will be held in error for proceeding with the trial, although such defendants were only indicted and arraigned on the preceding day.

In prosecution for murder, in absence of contrary showing, it is presumed that trial court appointed competent counsel who faithfully discharged duty. In the absence of any showing in the record to the contrary, we must presume that the lower court, in appointing counsel to represent the defendants, did its duty by appointing competent counsel and that such counsel faithfully discharged his duty.

No general principle fixes exact time necessary between finding indictment and trial, nor has Legislature fixed minimum time; what is fair time between indictment and trial is for sound discretion of trial court; what may be sufficient time between indictment and trial in one case might be insufficient in another. There is no general principle of law fixing the exact time which must elapse between the finding of an indictment and beginning of a trial thereon, nor has the Legislature undertaken to fix any minimum time in such matters, but has left it to the sound discretion of the trial court to be governed by what is fair, right, and reasonable in each particular case. What may be a sufficient time to prepare for trial in one case mignt be wholly insufficient in another. Therefore no hard and fast rule could be applied alike in all cases.

Without showing prejudice or request for further time, holding murder trial one day after return of indictment does not presumptively show insufficient allowance. In the absence of any showing in the record to the contrary, and in the absence of any request by the defendants or their counsel for further time, this court would not be warranted in presuming that the court below did not allow sufficient time between the finding of the indictment and the trial of the case merely because the record shows the trial began one day after the indictment was returned.

COUNSEL Thomas Hamilton, T. Hagood Gooding, and E. P. Beatty, all of Clearwater, for plaintiffs in error.

J. B. Johnson, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.

OPINION

BROWN. J.

These two plaintiffs in error, together with two women defendants were jointly indicted by the grand jury at a special term of the circuit court of Pinellas county for the murder of E. E Blewfield, and the petit jury found plaintiffs in error guilty as charged in the first and third counts of the indictment, both of which charged murder in the first degree, and they were sentenced to death by electrocution. The judgment of conviction is brought...