Brown v. State

• Citation: 10 So. 736,29 Fla. 543
• Parties: BROWN v. STATE.
• Decision Date: 01 April 1892
• Court: United States State Supreme Court of Florida

10 So. 736

29 Fla. 543

BROWN v. STATE.

Florida Supreme Court

April 1, 1892

Error to criminal court of record, Duval county; H. B. PHILLIPS Judge.

Prosecution against William T. Brown for perjury. From a judgment on conviction defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. At common law, a writ of error did not lie to correct an error which was not apparent on the record, and the statute of 13 Edw. I. was enacted to provide a remedy for reviewing decisions of the trial court on matters in pais, to which exception was taken; and strictly, at the common law, it was doubted if this statute applied to any criminal case.

2. Our statute (section 1, c. 138, Laws 1848; section 1, p. 454 McClel. Dig.) allows a bill of exceptions in criminal cases but it does not undertake to point out the matters and things which are proper to appear in a bill of exceptions, or the matters decided by the trial court which may in this way be presented for review to the appellate court; and what is a bill of exceptions, and its true office, are matters left for judicial ascertainment.

3. The true office of a bill of exceptions is to present some objection in point of law to the opinion, judgment direction, or action of the trial court on matters which do not properly appear of record, and it is not its office be supersede or take the place of any requisite record entries in a cause, but to present exceptions taken during the progress of the trial, to the opinion and decision of the judge on matters which otherwise would remain in pais.

4. The record proper should show in cases of felony that the jury was sworn, and an omission in this respect is fatal to a conviction, and it cannot be supplied by a recital in the preface of a bill of exceptions, intended merely to connect the bill with the case tried, that the jury was sworn.

5. In felonies it is necessary that the accused be personally present during the progress of the trial, including the judgment or sentence of the court; but while it is best always to have the record show directly and affirmatively that the accused was personally present at each and every stage of the trial, it will be sufficient if it appear therefrom, by necessary and reasonable implication, that he was present.

COUNSEL A. W. Cockrell & Son, for plaintiff in error.

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

OPINION

MABRY J.

An information was filed in the criminal court of record of Duval county on the 2d day of November, A. D. 1891, by the county solicitor of said court, against the plaintiff in error, charging him with the crime of perjury. After an arraignment upon this information, and a plea of 'not guilty,' the plaintiff in error was tried and convicted on the 14th day of November, A. D. 1891, of the offense of which he was charged, and on the 28th day of said month was sentenced to the penitentiary for the term of three years. On his application the record in this cause has been certified to this court under a writ of error, and the same is before us for review.

No objection was made in the criminal court, nor is any presented here, to the sufficiency of the information, and it is not necessary to set it out in this opinion.

After an examination of the record before us, we have become convinced that the judgment of the lower court must be reversed, and the cause remanded.

We will refer to only two of the objections presented here to the validity of the judgment rendered against the plaintiff in error, and both of these relate to the sufficiency of the record of the proceedings against him in the trial court. It is claimed, in the first place, that the record does not show that the jury who rendered the verdict against the plaintiff in error was sworn. From the record entries, as appears from the transcript before us, we find no mention made of the jury's having been sworn. The minute of the court in reference to the trial of the accused, as made to appear to us, is in this language, viz.: 'And now comes the county solicitor, and the defendant in the above-entitled cause. Said defendant, being arraigned, pleaded 'not guilty,' whereupon came a jury, to-wit, [their names are here given,] who, having heard the evidence, argument of counsel, and the charge of the court, retired to consider of their verdict, which, after due deliberation, they brought in in the words and figures as follows,' (then follows the verdict of guilty.) It will not be questioned that it was absolutely essential for a proper conviction of the accused that the jury should have been properly sworn before rendering a verdict against him, and it is also essential that this fact should appear upon the record. We held, and we think correctly, in the case of Garner v. State, 28 Fla. ----, 9 South. Rep. 835, that where the record shows simply that the jury was sworn it was sufficient. This is true where no exception is taken to the manner in which the jury is sworn, and in such case the record recital that the jury was sworn is evidence sufficient that it was done as provided by law. But the record must show that the jury who tried the accused was sworn. Crist v. State, 21 Ala. 137, Rich v. State, 1 Tex. App. 206; Dyson v. State, 26 Miss. 362. In the case before us the bill of exceptions, made up and signed, in pursuance of a special order for that purpose, some time after the trial, recites that the jury was sworn. This recital is found in the caption of the bill of exceptions in the usual form, and as copied here is as follows: 'Be it remembered that at a term of the criminal court of record for Duval county, Florida, held at Jacksonville, Duval county, on the 4th Tuesday in November, A. D. 1891, a cause therein pending, wherein the state of Florida was plaintiff, and W. T. Brown was defendant, came on to be heard before the Hon. H. B. PHILLIPS, judge of said court, at which day came the said parties by their respective attorneys; and thereupon the said issues, in manner and form aforesaid joined, came on to be tried; and the jurors of the jury aforesaid, whereof mention is made within, being called, likewise came, and were sworn to try the issues in manner aforesaid joined; and thereupon the plaintiff, to maintain the issues on its part, introduced as a witness,' etc. Does this recital in the bill of exceptions that the jury was sworn supply the omission in the record? If it does not, there is no sufficient record evidence before us that the plaintiff in error was ever properly convicted.

Our statute provides 'that it shall be the duty of the judges of the circuit courts of this state, upon the trial of any person or persons charged with crime or misdemeanor in said court, to sign and seal, upon request, any bill of exceptions taken during the progress of the cause, and tendered to the court, provided the said bill of exceptions, as tendered fairly state the truth of the matter and the exception designed to be taken; and the same shall, when signed, become a part of the record of such cause.' Section 1, c. 138, Laws 1848; section 1, p. 454, McClel. Dig. At common law a writ of error did not lie to correct an error which was not apparent on the record, and therefore, where a party to a cause objected to the decision of the court on matters in pais, he was without any legal remedy whereby such a decision could be certified to the appellate court for review. To remedy this defect it was enacted by statute 13 Edw. I.: 'If one impleaded before any of the justices allege an exception, praying that the justices will allow it, that, if they will not, and if he write the exceptions, and require the justices to put their seals to it, the justices shall do so; and, if one will not, another shall.' 2 Phil. Ev. 996; 2 Tidd, Pr. 862; Proctor v. Hart, 5 Fla. 465. It will be noted that the statute was designed to provide a remedy for reviewing decisions on matters which did not appear on the record. This statute of 13 Edw. I. is old enough to be in force here, and is undoubtedly a part of our law applicable to civil causes. It was said that this statute did not apply to indictments for treason and felony, and it was doubted if it applied to any criminal case. 1 Chit. Crim. Law, 622; 2 Phil. Ev. 997; 2 Tidd, Pr. 862; Ex parte Vermilyea, 6 Cow. 555; Ex parte Barker, 7 Cow. 143. In Wynehamer v. People, 20 Barb. 567, it is said: 'Bills of exceptions in criminal cases are unknown to the common law. The right to a bill of exceptions in such a case is given by statute.' Our statute, above referred to, gives the right to a bill of exceptions in a criminal case; but it does not undertake to point out the matters and things which are proper to appear in a bill of exceptions, or the particulars wherein the rulings of the trial court may in this way be presented for review to the appellate court. The provision is that the judge shall sign and seal, upon request, any bill of exceptions taken during the progress of the cause, and tendered, provided it fairly states the truth of the matter, and the exception designed to be taken. What is a bill of...