Blocker v. State

• Decision Date: 29 November 1910
• Parties: BLOCKER v. STATE.
• Court: Florida Supreme Court

53 So. 715

60 Fla. 4

BLOCKER v. STATE.

Florida Supreme Court, Division A.

November 29, 1910

Error to Criminal Court of Record, Volusia County; James W Perkins, Judge.

H. A Blocker was convicted of grand larceny, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

In a prosecution for felony, it is essential that the record proper should clearly show that the defendant was arraigned and pleaded to the charge, and by express recital or by fair implication that the accused was personally present at every stage of the trial; and a statement in the record proper that the defendant came by his attorneys does not imply the defendant's personal presence.

In a prosecution for larceny, it is error to refuse charges predicated upon a lawful taking of the property, where that was the defense made in the evidence.

COUNSEL Stewart & Bly, for plaintiff in error.

Park Trammell, Atty. Gen., for the State.

OPINION

WHITFIELD C.J.

The transcript of the record brought to this court from the criminal court of record for Volusia county in response to a writ of error is prepared under rule 103 of circuit court rules, and the certificate of the clerk is that it is 'a true copy of all the proceedings and a correct transcript of the record of the judgment in the case of the State of Florida, plaintiff, and H. A. Blocker, defendant, as appears upon the files and records of my office,' as required by the said rule. See 14 Fla. 34 et seq., of appendix.

In this transcript it is stated that on June 13, 1910, 'H. A Blocker was bound over to the criminal court of record in and for Volusia county,' by the county judge of that county, 'to answer a charge of grand larceny.' On June 14, 1910, an information charging H. A. Blocker with grand larceny was filed in the criminal court of record, and on the next day another information was filed charging H. A. Blocker with grand larceny. A capias was issued, and the return thereon is that the accused was arrested and taken into custody by the sheriff. The record then states that on June 16, 1910, at a term of the criminal court of record, 'came the said plaintiff and the said defendant by their respective attorneys, and thereupon came a jury * * * 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: We, the jury, find the defendant, H. A. Blocker, guilty as charged; so say we all. J. B. Odum, Foreman. And upon the same day the judgment of the court upon the said verdict was entered in the words and figures, to wit: Now comes the defendant, H. A. Blocker, by his attorneys, Stewart & Bly, and moves this court to set aside the verdict of the jury rendered in the above-styled cause, and to grant the defendant a new trial, which motion was overruled, to which the defendant excepts. Then came the defendant in person. What have you to say why the sentence of the law and the judgment of the court should not be pronounced upon you? This answer not being sufficient, it is the sentence of the law and the judgment of the court that you, H. A. Blocker, be confined in the state prison of Florida for a period of three years; sentence to begin from this date.'

It nowhere appears in the transcript, which is certified to contain 'a true copy of all the proceedings,' that the defendant was ever at any time arraigned, or that he pleaded to the information in person or otherwise, or even that he was present at the trial until sentence was pronounced, except that the bill of exceptions shows he testified in his own behalf.

In a prosecution for felony, it is essential that the record proper should clearly show that the defendant was arraigned and pleaded to the charge, and by express recital or by fair implication that the accused was personally present at every stage of the trial; and a statement in the record proper that the defendant came by his attorneys does not imply the defendant's personal presence. Warrace v. State, 27 Fla. 362, 8 So. 748; Denham v. State, 22 Fla. 664; Story and Sullivan v. State, 16 Fla. 564; Bassett v. State, 44 Fla. 2, 33 So. 262; Clements v. State, 51 Fla. 6, 40 So. 432; Dixon v. State, 13 Fla. 631; Lovett v. State, 29 Fla. 356, 11 So. 172; Palmquist v. State, 30 Fla. 73, 11 So. 521; Brown v. State, 29 Fla. 543, 10 So. 736; McCoy v. State, 40 Fla. 494, 24 So. 485; Irvin v. State, 19 Fla. 872; McCoggle v. State, 41 Fla. 525, 26 So. 734; Burney v. State, 32 Fla. 253, 13 So. 406; Adams v. State, 28 Fla. 511, 10 So. 106; Martin v. State, 42 Fla. 194, 27 So. 865; Lewis v....