Blocker v. State

• Court: Florida Supreme Court
• Writing for the Court: STRUM, J.
• Citation: Blocker v. State, 90 Fla. 136, 105 So. 316 (Fla. 1925)
• Decision Date: 10 July 1925
• Parties: BLOCKER v. STATE.

105 So. 316

90 Fla. 136

BLOCKER v. STATE.

Florida Supreme Court

July 10, 1925

En Banc.

Error to Circuit Court, Santa Rosa County; A. G. Campbell, Judge.

Bawsey Blocker was convicted of assault with intent to commit murder in the second degree, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

If exceptions show sufficient evidence to support conviction, in absence of showing that jury was influenced by considerations other than evidence, conviction will not be set aside. Where the bill of exceptions discloses ample evidence from which the jury might have found or inferred all the essential elements of the crime of which they found the defendant guilty, and it does not appear that the verdict is so manifesly against the weight of the evidence as to convince the appellate court that the verdict is either wrong or unjust, or that the jury was influenced by considerations other than the evidence, this court will not intervene and set aside the verdict of the jury.

Recitals of facts in motions relating to matters in pais are not evidence, on appeal, of truth of such facts, when motion is denied by trial court. Motions relating to matters in pais are not self-supporting, and recitals of facts therein contained are not evidence on appeal of the truth of such facts, when the motion is denied by the trial court.

COUNSEL

J. T. Wiggins, of Milton, for plaintiff in error.

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

OPINION

STRUM J.

Plaintiff in error was convicted of assault with intent to commit murder in the second degree, and took writ of error.

The record presents two points for consideration First, the sufficiency of the evidence to sustain the verdict; and second, whether there was a compliance with section 6028, Revised General Statutes, 1920.

The bill of exceptions discloses ample evidence from which the jury might have found or inferred all the essential elements of the crime of which they found the defendant guilty. It does not appear that the jury was influenced by considerations other than the evidence. Although there is some conflict in the evidence as to whether or not the defendant was the aggressor in the encounter which forms the basis of the charge against the defendant, such conflicts were settled by the jury. The verdict is not so manifestly against the weight of the evidence as to convince us that the verdict is either wrong or unjust, and under such circumstances this court will not intervene and set aside the verdict of the jury. Dixon v. State, 79 Fla. 586, 84 So. 541; John v. State, 16 Fla. 554; Boyington v. State, 77 Fla. 602, 81 So. 890; Logan v State, 58 Fla. 72, 50 So. 536; Caldwell v State, 62 Fla. 18, 56 So. 497; Parrish v. State, 105 So. 130, decided during this term.

Section 6028, Revised General Statutes, 1920, provides:

'That when any minor, not married, may be charged with any offense and brought before any of the courts, including municipal courts, of this state, due notice of such charge prior to the trial thereof shall be given to the parents, or guardian of such minor. * * *'

Defendant moved for a new trial and in arrest of judgment, upon the ground amongst others, that:

'The court erred in requiring the defendant to go to trial without first giving legal notice to the parents of the defendant, he being a minor under the age of 21 years, single, and his parents reside in Santa Rosa county, Fla.'

This court has heretofore decided that motions relating to matters in pais are not self-supporting, and that recitals of fact therein contained are not evidence on appeal of the truth of such facts, when the motion is denied by the trial court. Smith v. State, 57 Fla. 24, 48 So. 744; Lindsay v. State, 69 Fla. 641, 68 So. 932.

The only evidence offered, in support of the above-quoted ground of said motions was an affidavit of the defendant, sworn to and presented to the trial court on the day of the trial in the following words:

'Before the subscriber personally appeared Bozy Blocker, who, being duly sworn, says he is a minor under the age of 21 years, to wit, 17 years old on the 8th day of October, A. D. 1924.'

No evidence is presented, or other sufficient showing made, that the defendant is an unmarried minor, to which class of minors the statute referred to is confined. Assuming, however, that the defendant is an unmarried minor, the transcript of the record entirely fails to properly evidence the fact that the notice provided for by the statute was in fact not given to the parent or guardian of the defendant. We have seen that the mere recital of the fact in the motion is insufficient for that purpose, particularly a recital which, as in the case here, is not positive and unequivocal, but merely inferential. This recital is the only attempted affirmative intimation found in the record that the notice was in fact not given. Even the affidavit of the defendant does not undertake to assert the fact. There is in the record no affidavit or testimony of the sheriff, or other sufficient showing of any nature, upon the question of whether or not a notice was in fact given under the statute.

The transcript of the record, certified under rule 103 of the circuit courts in commonlaw actions as constituting 'a true copy of all the proceedings and a correct transcript of the record of the judgment,' does not contain a copy of anything purporting to be a...