Coker v. State

Decision Date22 May 1922
Citation83 Fla. 672,93 So. 176
PartiesCOKER v. STATE.
CourtFlorida Supreme Court

Error to Circuit Court, Hardee County; M. F. Horne, Judge.

Elbert Coker was convicted of rape, and brings error.

Reversed for new trial.

Ellis and West, JJ., dissenting.

(Syllabus by the Court.)

COUNSEL

W. D. Bell, of Arcadia, for plaintiff in error.

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

OPINION

WHITFIELD J.

The indictment herein filed in De Soto county December 20, 1920 charges:

'That Elbert Coker, on the 5th day of September, in the year of our Lord 1920, at and in the county of De Soto aforesaid, with force and arms, in and upon one Lessie Boyette, a female, did make an assault, and her, the said Lessie Boyette, then and there feloniously did ravish and carnally know, forcibly and against the will of her the said Lessie Boyette, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.'

A former judgment of conviction under the indictment was reversed for errors of procedure. Coker v. State (Fla.) 89 So. 222.

On a subsequent trial the defendant was found 'guilty of rape as charged, and recommended to the full mercy of the court.' To a judgment imposing a sentence to life imprisonment the defendant took a writ of error.

By chapter 8513, Laws of Florida, approved April 23, 1921, the county of De Soto was divided into five counties, viz. Hardee county, Highlands county, Glades county, Charlotte county, and De Soto county. All of the said counties were made, as the entire county of De Soto had been, a part of the Twelfth judicial circuit. The statute also provides:

'The courts of each of said counties shall have civil and criminal jurisdiction throughout said county over causes of action which shall have accrued, and over crimes and misdemeanors which shall have been committed within the territory embraced in each of said counties as hereby constituted, prior to this act going into effect, in the same manner and to the same extent as if said county had been in existence when such causes of action accrued or such crimes of misdemeanors were committed.' Section 11.

'All actions, suits and prosecutions, and all proceedings in guardinship or administration, and all other actions, suits, prosecutions or proceedings that may be pending in De Soto county in any court or before any officer or board of said county, upon this act going into effect whereof any court, officer or board of any one of said new counties would have had jurisdiction if said county had been in existence when such action or proceedings were instituted, shall be transferred to the court, officer or board of such new county having jurisdiction of such matters, and all pleadings, papers and documents in any way pertaining to any such action, prosecution or proceeding shall be delivered by the clerk or other officer, court or board of De Soto county having custody thereof, to the proper officer, court or board of such new county.' Section 12.

By executive order dated August 24, 1921, the judge of the Third judicial circuit was designated to preside in the trial of this cause to be held in Hardee county, and on August 26, 1921, the said judge presiding ordered 'that the clerk file all papers, motions, pleas in this cause nunc pro tunc.'

It appears by the transcript that the following indorsement was made upon the indictment by the clerk of the circuit court for Hardee county:

'By order of the judge pro haec vice this paper is filed Aug. 26, 1921, as of 16th day of Aug. 1921, on which date this paper was received from A. L. Durrance, clerk of the circuit court of De Soto county, Florida.'

The papers in the cause having been received on August 16, 1921, by the clerk of the circuit court for Hardee county from the clerk of the circuit court for De Soto county, pursuant to sections 11 and 12, chapter 8513, Acts of 1921, the cause was pending in the circuit court for Hardee county when the executive order of August 24, 1921, designated the judge of the Third judicial circuit to preside at the trial of the cause, and the order made August 26, 1921, that the papers, etc., in the cause be filed nunc pro tunc as of the day on which they were duly received by the clerk of the circuit court for Hardee county, was appropriate, the court under the Constitution, and the judge presiding by executive designation, having jurisdiction in the premises. See Johnson v. State, 58 Fla. 68, 50 So. 529; Ammons v. State, 9 Fla. 530.

The Constitution provides that----

'In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury, in the county where the crime was committed.' Section 11, Declaration of Rights.

When this indictment was found the place where the crime was alleged to have been committed was in a subdivision of the state then called De Soto county, and the indictment properly alleged the commission of the crime to have been in De Soto county. When the county was subsequently divided, the statute properly directed a transfer of causes then pending to the proper court in the county covering the territory in which the cause arose, thus making effective the constitutional provision that the accused has a right to be tried 'in the county where the crime was committed.' This is not a transfer at the instance of the state of a criminal prosecution from a county where the alleged crime was committed to another county in which the crime was not committed, as in O'Berry v. State, 47 Fla. 75, 36 So. 440, and Ashley v. State, 72 Fla. 137, 72 So. 647.

The provision of the statute that the courts of each of the newly created counties shall have jurisdiction over crimes which shall have been committed within the territory embraced therein 'in the same manner * * * as if said county had been in existence when * * * such crimes were committed,' does not invalidate an indictment found in De Soto county before its division for a crime committed in the portion of the old county that is subsequently embraced in the county called Hardee; but under the constitution and the statute, upon a due transfer of the papers in the cause to Hardee county, trial may there be had in order that the accused may be accorded his right to be tried 'in the county where the crime was committed' as guaranteed by the Constitution. Though the indictment alleges the crime was committed in De Soto county, the statute, by directing a transfer of the papers in the cause, preserves the right of the defendant as to the venue of the trial, which is the substance of the organic right; the name of the county under the circumstances not being of controlling import. Should it develop that the alleged crime was in fact not committed in the part of old De Soto county now called Hardee county, the trial court would of course take appropriate action to preserve the rights of the defendant and to effectuate applicable law.

The indictment is not repugnant in itself, and the allegation of the indictment that the crime was committed in De Soto county does not preclude a trial in Hardee county, in view of the subsequent statute creating Hardee county out of a portion of De Soto county; there being no plea that the alleged crime was not in fact committed in the territory now constituting Hardee county. The plea to the jurisdiction of the court over the cause set up no fact showing a want of jurisdiction, and it was properly eliminated by demurrer.

The defendant filed the following plea in abatement:

'Now comes Elbert Coker in his own proper person, all the proceedings heretofore had and taken in said cause having been declared null and void by the Supreme Court of the state of Florida, and enters this his plea in abatement to the indictment herein pending and says: That the state of Florida ought not to further prosecute him upon said indictment because same is illegal in this, to wit: The name of the defendant and the case of the state of Florida against Elbert Coker was...

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24 cases
  • Marr v. State
    • United States
    • Florida District Court of Appeals
    • January 29, 1985
    ...the jury was so instructed. [citations omitted]Not cited by defendant, but also containing the language in question is Coker v. State, 83 Fla. 672, 93 So. 176, 178 (1922):Upon a prosecution for rape alleged to have been committed "forcibly and against the will of" the prosecuting witness, r......
  • Lowe v. State
    • United States
    • Florida Supreme Court
    • July 25, 1944
    ... ... 768, 189 So. 21; Skiff v. State, 107 Fla. 90, 144 ... So. 323; Nims v. State, 70 Fla. 530, 70 So. 565; ... Fuller v. State, 92 Fla. 873, 110 So. 528; Ming ... v. State, 89 Fla. 280, 103 So. 618; Platt v ... State, 65 Fla. 253, 61 So. 502; Townsend v ... State, 95 Fla. 139, 116 So. 7; Coker v. State, ... 83 Fla. 672, 93 So. 176; Knowles v. State, 86 Fla ... 270, 97 So. 716; Davis v. State, 76 Fla. 179, 79 So ... The judgment ... appealed from is reversed and a new trial awarded ... BROWN, THOMAS, and ... ADAMS, JJ., concur ... BUFORD, C. J., and ... ...
  • Newman v. State
    • United States
    • Florida Supreme Court
    • March 15, 1967
    ... ...         While it is true it has been held that where the prosecutrix is the sole witness to the act, her testimony should be rigidly scrutinized to avoid an unmerited conviction of a capital offense, Coker v ... State, 83 Fla. 672, 93 So. 176, nevertheless, the victim in this case was emphatic in her testimony that defendant carnally assaulted her. If believed by the jury, her testimony appearing in the record is sufficient to convict ...         Point 5. The appellant, a Negro male, ... ...
  • McIlwain v. State
    • United States
    • Florida District Court of Appeals
    • July 8, 1981
    ...324 So.2d 713 (Fla. 1st DCA), cert. denied, 336 So.2d 1184 (Fla.1976).4 Truluck v. State, 108 So.2d 748 (Fla.1959); Coker v. State, 83 Fla. 672, 93 So. 176 (1922); Smith v. State, 362 So.2d 417 (Fla. 1st DCA 1978); Johnson v. State, 118 So.2d 806 (Fla. 2d DCA 1960).5 Tibbs v. State, 397 So.......
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