92 So. 535 (Fla. 1922), Mercer v. State

Citation:92 So. 535, 83 Fla. 555
Opinion Judge:ELLIS, J.
Party Name:MERCER v. STATE.
Attorney:[83 Fla. 556]H. D. Garrison, of Wauchula, for plaintiff in error. Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.
Case Date:May 05, 1922
Court:Supreme Court of Florida

Page 535

92 So. 535 (Fla. 1922)

83 Fla. 555

MERCER

v.

STATE.

Florida Supreme Court

May 5, 1922

Rehearing Denied May 29, 1922.

Error to Circuit Court, Hardee County; George W. Whitehurst, Judge.

Lewis Mercer was convicted of incest, and he brings error.

Affirmed.

Browne, C.J., and Taylor, J., dissenting.

(Syllabus by the Court.)

COUNSEL

Page 536

[83 Fla. 556]H. D. Garrison, of Wauchula, for plaintiff in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

ELLIS, J.

The plaintiff in error, Lewis Mercer, was indicted for the crime of incest alleged to have been committed upon his daughter during the month of April, A. D. 1921. The testimony of the daughter with whom the illicit intercourse was alleged to have been committed was to the effect that the defendant began such conduct about two weeks after the death of his wife, and by cruelty and intimidation subjected her body to his unlawful desires many times through a period of about a year, or longer. There was a verdict of guilty by the jury, and judgment and [83 Fla. 557] sentence pronounced by the court, which the defendant in the court below seeks to reverse here upon writ of error.

According to the certificate of the clerk which is attached to the record, the case is brought to this court under special rule 3 (87 South. xii) for the 'making up of transcripts by the clerk in civil causes.' The special rule was adopted in 1905, and provision was made by special rule 6 (87 South. xiv) that special rules 1, 2, and 3 may be used in the preparation of transcripts of records and bills of exceptions in criminal and habeas corpus cases. These new rules require that a certificate by the clerk of the court shall be attached to the transcript that it contains a correct 'transcript of the record of the judgment' in the case, and a true and correct recital and copy of 'all such papers and proceedings in said cause as appears upon the records and files of my [his] office, that have been directed to be included in said transcript by the written demands of the said parties.' The certificate of the clerk required by the old rule contained a statement that the pages to which the certificate was attached constituted 'a true copy of all of the proceedings and a correct transcript of the record of the judgment in the case' as appeared upon the files and records of the office.

This court has held that a transcript of the record prepared under the old rule in a criminal case in which the defendant was charged with a felony must show that the defendant was arraigned and pleaded to the indictment and was personally present at every stage of his trial or the judgment would be reversed. See Warrace v. State, 27 Fla. 362. 8 So. 748; Lovett v. State, 29 Fla. 356, 11 So. 172; Blocker v. State, 60 Fla. 4, 53 So. 715.

[83 Fla. 558] But in such cases if the transcript is prepared under the new rule it need show only the judgment 'and such papers and proceedings in said cause' 'that have been directed to be indluded in said transcript by the written demands of the said parties.' The new rules also require that if the bill of exceptions contains all the evidence, there shall be inserted just above the signature of the judge the following certificate:

'I do hereby certify that the foregoing bill of exceptions contains all the evidence introduced at the trial in the above-stated cause.'

Page 537

The bill of exceptions in this case contains no such certificate, but at the bottom of page 27 the following statement is inserted:

'The above and foregoing pages 1 to 27 is all the testimony of all the witnesses, submitted at the trial of this cause.'

The judge's signature appears at the bottom of page 30 of the bill. The statement in the bill of exceptions that 'pages 1 to 27 is all the testimony of all the witnesses submitted at the trial of this cause' is not an improvement upon the certificate required by the rule. The reason however for ignoring the form of certificate prescribed by the rule may have been that the person who prepared the bill of exceptions desired to distinguish between the 'testimony of all the witnesses' and 'all the evidence introduced at the trial,' a distinction which is perfectly good; the former being much narrower in its scope than the latter.

If the transcript of the record had been made up under the old rule, this judgment would have to be reversed because the record proper as distinguished from the bill of exceptions does not show that the defendant was arraigned and pleaded to the indictment. The transcript in this case, however, appears from the form of the clerk's certificate to have been made up under the new rules, which were also ignored in some particulars. The new rules require[83 Fla. 559] that where the plaintiff in error presents a bill of exceptions to the judge to be made up and settled for the appellate court, he shall present with such bill an assignment of errors specifically mentioning each point that he intends to present in and by such bill of exceptions as grounds for reversal, and such assignment of errors shall be the guide for making up the bill of exceptions and shall be made a part thereof. Special rule 1 (87 South. x).

The bill of exceptions contains no reference to an assignment of errors, and seems to have been made up according to the form prescribed by the old rules with some modifications of requirements prescribed by the new.

In the case of Albritton v. State, 54 Fla. 6, 44 So. 745, this court, speaking through Mr. Justice Whitfield said, as appears by the first headnote, that the two methods prescribed by the old and new rules for making up and authenticating bills of exceptions and transcripts of records should not be confused or blended. And Mr. Chief Justice Shackleford, speaking for the court in the case of Clinton v. State, 53 Fla. 98, 43 So. 312, 12 Ann. Cas. 150, said the same thing. In each case the transcript of the record was so made up that the observation seemed appropriate. In both cases, however, the point was considered; in one case the judgment of the lower court was reversed, and in the other it was affirmed.

The bit of advice given in the two cases seems to have been overlooked in the preparation of the transcript in this case, but as it may be done with impunity seemingly we will consider the questions which are actually presented.

In the first place as the transcript of the record appears to have been made up under the new rules we refer to the directions given to the clerk for making up the transcript to ascertain if the plaintiff in error purposely omitted to [83 Fla. 560] direct the clerk to copy the entry in the court...

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