Brown v. State

• Decision Date: 09 June 1892
• Citation: 11 So. 181,29 Fla. 494
• Parties: BROWN v. STATE.
• Court: Florida Supreme Court

11 So. 181

29 Fla. 494

BROWN v. STATE.

Florida Supreme Court

June 9, 1892

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

Prosecution against William T. Brown. He was convicted, and on error the judgment was reversed, and a remittitur filed in the lower court. On motion by the attorney general to vacate the judgment of reversal and for a rehearing. Motion denied.

Syllabus by the Court

SYLLABUS

The supreme court, acting upon a true transcript of the record of an inferior court, and in the regular course of appellate procedure, reversed the judgment of the inferior court on the ground that the record of the latter court did not show that the petit jury was sworn, or that the prisoner was personally present when sentence was pronounced upon him for a felony. After the remittitur of the supreme court was issued and filed in the inferior court, the latter court amended its record nunc pro tunc, so as to make it show that the jury had been sworn and the prisoner was personally present when sentenced. Held, on motion made by the state at the same term of the supreme court, that it lost jurisdiction of the writ of error, and could not vacate the entry of its judgment, and restore the case to its docket.

COUNSEL William B. Lamar, Atty. Gen., for the motion.

OPINION

RANEY C.J.

A judgment was rendered by us in this case on the 1st day of April last, reversing the judgment of the criminal court of record of Duval county, entered at its November term, 1891. The reasons for such reversal were that the record proper did not show that the jury were sworn, or that the prisoner was personally present when sentence was pronounced. Brown v State, 29 Fla. 543, 10 South. Rep. 736. He was convicted of a felony. After theremittitur was issued and filed in the criminal court, the attorney general moved, on May 17th, to vacate our judgment of reversal and for a rehearing of the cause, 'for the reason that what purports to be a transcript of the record in said cause is not in fact a true and correct transcript of said record in the court below, and the alleged defects of record upon which the judgment of the court below was reversed do not in truth and fact exist, but that the contrary is true;' and he suggests diminution of record, and asks for a writ of certiorari directing that court to make a further return showing that the jury was 'duly sworn, and showing the further fact of the presence of the said William T. Brown in the court below at the time of the sentence being pronounced against him by the court, and other entries lacking in the transcript heretofore filed.' In support of this motion the attorney general files, as stated in his motion, a certified copy of the order of that court amending its record.

This certified copy shows that on the 11th day of May, 1892, which was after our mandate had gone down, that court, at its April term, 1892, made an order amending the record of the November term, 1891, as to the trial of Brown, so as to make it show that the jury was 'duly elected, tried, and sworn according to law,' and that Brown was present 'in his proper person, as well as by his counsel, F. W. Pope, and saying nothing sufficient why the sentence of the law should not be passed upon him.' This order also states that Brown was present in person and by counsel when it was made and it purports to have been made for the purpose of having the record speak the truth.

Due notice of the motion now before us was given to the attorney who represented Brown in this court, and this attorney having voluntarily filed his views on the motion, as amicus curiae, but not as attorney of Brown in this matter, we adjourned the hearing of the motion, and issued notice to Brown personally. This notice has been returned not served, because of the inability of the sheriff to find him; still the view we take of the question involved in the motion renders the want of service immaterial.

It is evident that the judgment of this court which it is sought to have opened was rendered without irregularity of procedure and upon the true record of the cause as it then stood in the criminal court of record, and that our mandate had been filed in that court before any motion was made there to amend the record upon which the trial or review of the case was had here. There is not only not any error of law in our decision, but our exercise of jurisdiction has been entirely regular, and is not the result of either mistake, surprise, imposition, misrepresentation, or fraud. The record of that court, as it was and as all the parties knew it to be, was regularly brought here, and the cause duly heard. The state was content to let the record stand thus in the lower court, and to risk a trial upon it here. It...