Bryan v. State

• Decision Date: 18 October 1899
• Citation: 26 So. 1022,41 Fla. 643
• Parties: BRYAN v. STATE.
• Court: Florida Supreme Court

26 So. 1022

41 Fla. 643

BRYAN v. STATE.

Florida Supreme Court

October 18, 1899

Error to criminal court of record, Volusia county; Isaac A Stewart, Judge.

Gadsden D. Bryan was convicted of larceny, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. The verity of the record proper that has been made up and exists in the lower court, or a bill of exceptions that has been settled and signed by the trial judge and made a part of the record, as provided by statute, cannot be questioned in the supreme court.

2. When a bill of exceptions comes on for settlement before the trial judge, and objections are made to the insertion of matter in the bill, but it is inserted by direction of the judge, and the bill is signed by him, and filed in the cause, it cannot be insisted in the appellate court that the matter objected to is no part of the bill. The statute provides that, when a judge refuses to settle and sign a proper bill of exceptions when seasonably tendered to him, three persons may sign it in his presence.

3. An information filed in a criminal court of record had appended to it an affidavit in form prescribed by statute, and after verdict it was objected in motions in arrest of judgment and for new trial that the prosecuting officer did not in fact swear to the information. Held, that such objection was waived by pleading to the merits and going to trial.

4. The grounds that disqualify judges and jurors are not coextensive under the statutes of Florida. Under section 967, Rev. St the grounds that disqualify a judge are when he is a party to the suit, or is interested therein, or when he would be excluded from being a juror by reason of interest consanguinity, or affinity to either of the parties; and under section 1086 a juror may be examined to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice; and when it shall appear to the court that the juror does not stand indifferent in the cause, or is otherwise incompetent, another shall be called in his stead.

5. Mere bias or prejudice, however strong, is no ground of disqualification of judge of a criminal court of record under the statutes existing in Florida.

6. Questions touching interest, motive, or animus of a witness are not collateral or immaterial, and such matters may be shown as independent evidence to be considered by the jury in estimating the credibility of the witness.

COUNSEL W. L. Palmer, for plaintiff in error.

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

OPINION

MABRY J.

Plaintiff in error was convicted in the criminal court of record of Volusia county of the crime of larceny, and brings writ of error to this court.

A motion has been made here by his counsel to strike out a portion of the record designated as a certain certificate of the presiding judge, found on stated pages, and the grounds of the motion are the following: (1) That no such facts as are contained in said certificate were adduced in the argument or hearing of the motion for new trial, nor were they offered or used at any stage of the trial. (2) 'That said certificate is not a part of the bill of exceptions, counsel for plaintiff in error having refused to admit such certificate in the bill of exceptions, as it formed no part of the trial of the cause.' (3) That said certificate was an ex parte statement of the presiding judge, never presented to counsel, or known to have been in existence, until 30 days after the argument and decision on the motion for new trial. The portion of the record sought to be eliminated is found in the record proper, and also in what purports to be the bill of exceptions. In the record proper it is found in connection with the order of the court overruling the motion for a new trial, to the effect that the foregoing motion (meaning motion for new trial) came on to be heard, and the court knew of his own knowledge that he was not, and never had been, of counsel of the alleged owners of the cow mentioned in the information, and was in no way interested in the cow alleged to have been stolen, nor attorney for any one claiming the same; was not interested in the cause; was not related to any of the parties; knew no disqualifications, and has no bias or prejudice that would prevent the defendant from having a fair and impartial trial in the case. The court further knew that G. P. Fowler and Frank Clark did not take charge of and manage the case, but only assisted the county solicitor; that at no time was the case allowed to proceed or witnesses examined in the absence of any counsel, either for the state or defendant, and the court's attention was never called to the absence, if it occurred, of the prosecuting attorney during the progress of the trial, and not till the motion for a new trial was made.

There is a bill of exceptions in due form, signed by the judge, and made up under an order extending the time 60 days, and immediately following his signature is the following: 'I hereby certify that it is contended by counsel for defendant that the attached order which was made on the motion for a new trial in this case,--State of Florida against Gadsden D. Bryan, larceny of a domestic animal,--which is in words and figures following, to wit: [giving the order as above stated] should not be put into the bill of exceptions, but in the record; and the court consents to attach the same, and make it a part of the bill of exceptions in this way. This was the order made on the motion for a new trial, and this certificate is signed at the same time as the certificate in the above order.' This was also signed by the judge.

The motion for a new trial made in the case and denied embodied various grounds. Among them were the following: That the judge was disqualified to preside at said trial, and declined to file a suggestion of his disqualification, as required by section 2821, Rev. St., by reason of which disqualification defendant did not have a fair and impartial trial; and that the prosecuting attorney was, from time to time, absent from the court room during the trial of the case, and left the management and conduct of the suit to counsel employed by private parties. With the motion to strike out, affidavits were filed bearing not only upon the insertion in the bill of exceptions of the matter sought to be eliminated, but upon other grounds and matters therein contained, and in reply counter affidavits have been presented.

In the exercise of its appellate jurisdiction this court acts upon the record as made in the court below, and, if that record be defective, an amendment of it cannot be made here. In harmony with previous decisions of this court and others, we held in Glaser v. Hackett, 38 Fla. 84, 20 So. 820, that a bill of exceptions regular in form, properly prepared, and attested by the trial judge, could not be attacked in the appellate court even for fraud practiced in obtaining it, and that, if improperly made up in the lower court, its correction must be sought there, and the amended record brought up by certiorari. This ruling proceeds upon the theory that, when a bill of exceptions has been settled and signed by the judge, and become a permanent record, as provided by the statute, its verity cannot be questioned in the appellate court; and it is upheld not only by the cases cited in its support, but by numerous other adjudications. Cluck v. State, 40 Ind. 263; Woodworth v. Byerly, 43 Iowa, 106; State v. Wroth, 15 Wash. 621, 47 P. 106; Eastman v. People, 93 Ill. 112; Earl of Glasgow v. Hurlet Alum Co., 3 H. L. Cas. 25; 3 Enc. Pl. & Prac. 513, and note. The case of Glaser v. Hackett did not decide that evidence was inadmissible to show that a bill of exceptions apparently regular did not in fact exhibit the matters truly as contained therein when settled and signed by the judge, as that it had been unauthorizedly altered after it had become a part of the record as provided by statute. The trial court would undoubtedly have the right in such a case to eliminate such matter from the record. It was said in Railroad Co. v. Malone, 116 Ala. 600, 22 So. 897, that the rule declaring parol evidence inadmissible to vary or contradict a record does not prohibit the introduction of such evidence when the purpose is to show that a paper writing or instrument which purports to be a record in fact is not a record, and that such showing could be made in the appellate court. It appears to us that the question whether this court has the authority to eliminate matter conceded or clearly shown to have been improperly added to the record after it was made up is not involved in the grounds of the present motion.

It is entirely clear that the first and third grounds involve nothing more than the truthfulness of the record as made by the trial judge, and it is settled law that this cannot be questioned by affidavits in the appellate court. The second ground asserts that the matter objected to was not a part of the bill of exceptions, counsel for plaintiff in error having refused to admit it in the bill, as it formed no part of the trial of the cause. This is not a statement that the bill of exceptions, after it had been settled and signed by the judge and become a part of the record, had been altered by having something added to it, but is rather an assertion that the matter incorporated into the bill and objected to was not part thereof, because counsel refused to admit it on the ground that if formed no part of the trial of the cause. It appears on the face of the bill certified to us that the judge made the matter objected to a part of the bill at the time he signed it. The statute (sections 1268, 2971, Rev. St.) provides that the judge...