Easterlin v. State

• Decision Date: 23 October 1901
• Citation: 31 So. 350,43 Fla. 565
• Parties: EASTERLIN v. STATE.
• Court: Florida Supreme Court

31 So. 350

43 Fla. 565

EASTERLIN v. STATE.

Florida Supreme Court

October 23, 1901

Error to circuit court, Alachua county; William A. Hocker, Judge.

J. D Easterlin was convicted of aggravated assault, and brings error. Reversed.

Carter J., dissenting.

Syllabus by the Court

SYLLABUS

1. The settled rule is that a plea in abatement is a dilatory plea and must be pleaded with strict exactness, and must be certain to every intent.

2. Under the provisions of chapter 4766, Laws approved May 26 1899, abolishing the county court of Alachua county, no formal certificate of transfer was necessary to remove causes formerly within the jurisdiction of such abolished court to other courts having jurisdiction to try them. Said act proprio vigore effected such transfers without any other formality.

3. The refusal of an application for continuance predicated on the absence of a witness cannot be adjudged erroneous when the affidavit filed in support of such application omitted to state 'that the applicant expects to procure said testimony at the next term.'

4. The signing of charges by trial judges is a formal statutory requirement that may be waived by a defendant, and a failure until after verdict to except to an omission or refusal to sign them is equivalent to a waiver of such statutory requirement.

5. Where a charge is assigned as error, and where such assignment cannot be said to have been entirely abandoned, but the appellate court sees that it is in good faith insisted upon in the briefs, and that it is erroneous and prejudicial to the defendant, it is proper for such court to adjudge the error therein, and to reverse the judgment, even though the defendant's counsel, in his argument or brief, failed to point out with accuracy the real ground upon which it is erroneous. Carter, J., dissents.

6. The settled rule here is that, where a single general assignment of error is made to embrace refusals to give more than one instruction asserting distinct propositions of law, an appellate court will go no further into the consideration of such an assignment, after ascertaining that the trial court correctly refused any one of the several instructions thus aggregated in the single assignment of error.

7. The following instruction: 'If the jury believe from the evidence that, at the time and place named in the information, C. B. Easterlin, John Easterlin, and J. D. Easterlin assaulted L. C. Gracy; that at the time of the assault either one of them was armed with a pistol, which was a deadly weapon; and that either one of them assaulted Gracy with said pistol,--then J. D. Easterlin is guilty, whether he was the person who actually handled the pistol or not, for the act of one was the act of each, and the jury should find the defendant J. D. Easterlin guilty.' Held to be erroneous, because of its omission of the principle that the parties named therein, in order to be chargeable in law for the acts of each other, must have been acting in pursuance of a conspiracy or agreement formed between them previously or at the time to consummate the unlawful common design or purpose.

COUNSEL

B. A. Thrasher, for plaintiff in error.

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

OPINION

TAYLOR C.J.

Upon an information filed by the county prosecuting attorney in the county court of Alachua county on the 9th day of January, 1899, the plaintiff in error was tried and convicted of the crime of aggravated assault in the circuit court of said county in May, 1901, and comes here by writ of error.

To the information the defendant plead in the circuit court, in abatement, as follows: 'That the court ought not to further prosecute this cause against him because he says that said information has been altered and changed by the erasure and interlineation of word or words since the filing of same; and because this court has no jurisdiction of this case, the same being prosecuted in information purporting to have been filed in the county court of Alachua county, Florida, on January 9th, 1899; the same never having been transferred to this court in the manner required by law; there being no such certificate as required by law for said transfer, as said pretended certificate has no caption, and is not entitled in any court, and has no seal of the court from which it purports to have come; neither does the clerk's signature to same show for what court he is clerk; and said pretended certificate of transfer, giving the style of the case as 'The State of Florida vs. J. D. Easterlin and C. B. Easterlin. Aggravated Assault,'--while the information here in this court, under which this defendant is now held and pleads, is stated as follows: 'State of Florida vs. C. B. Easterlin, J. D. Easterlin, John Easterlin. Aggravated Assault;' and because on the day and time of the pretended transfer of said case, and the making of said pretended certificate of transfer, to wit, November 1, 1899, there was no county court in Alachua county, Florida.'

Attached to said plea as an exhibit thereto was the following copy of the certificate mentioned therein:

'State of Florida vs. J. D. Easterlin, C. B. Easterlin. Aggravated Assault. Under and by virtue of the provision of the laws of Florida of 1899, chapter 4766, I, as clerk of the county court of Alachua county, Florida, do hereby transfer the above-entitled cause to the circuit court of Alachua county, Florida; being the court having jurisdiction of said cause. [Signed] H. C. Denton, County Clerk.

'Filed November 1st, 1899. [Signed] H. C. Denton, Clerk Cir. Court.'

To this plea the state, by its attorney, demurred upon the following grounds:

'(1) Because the said plea does not charge in what way or manner the information was erased or changed.

'(2) Because it is immaterial whether or not the county court had ceased to exist on November 1, 1899.

'(3) Because the said plea, and every part thereof, is vague, indefinite, and insufficient in law.'

The circuit judge sustained this demurrer, and this ruling is assigned as error. There was no error in this ruling. That feature of the plea that alleged alterations, interlineations, and erasures in the information subsequent to its filing is bad on demurrer, because of its failure to point out specifically what the alleged alterations, interlineations, and erasures were, and because of its failure to show that such alterations were material. The settled rule is that a plea in abatement is a dilatory plea, and must be pleaded with strict exactness, and must be certain to every intent. O'Connell v. Reg., 11 Clark & F. 155; State v. Brooks, 9 Ala. 9; Dolan v. People, 64 N.Y. 485; Reeves v. State, 29 Fla. 527, 10 So. 901; Hodge v. Same, 29 Fla. 500, 10 So. 556; Woodward v. Same, 33 Fla. 508, 15 So. 252; Jenkins v. Same, 35 Fla. 737, 18 So. 182, 48 Am. St. Rep. 267; Shepherd v. Same, 36 Fla. 374, 18 So. 773; Tervin v. Same, 37 Fla. 396, 20 So. 551.

That feature of the plea that questions the jurisdiction of the circuit court to try the defendant on the information filed in the county court by the county prosecuting attorney upon the ground of an alleged defective and informal certificate of transfer of the cause made by the clerk of the county court is without merit. By the provisions of section 18 of article 5 of our constitution, the establishment and abolition of county courts is intrusted to the will of the legislature. By chapter 4217, Laws approved May 24, 1893, a county court was established in Alachua county. Said chapter 4217 was subsequently repealed by chapter 4766, Laws approved May 26, 1899, and said county court abolished. By section 2 of the latter repealing act it is provided as follows: 'That all suits pending and undetermined in said court at the time this act shall go into effect, and all judgments of said court unsatisfied shall be transferred by the clerk of said county court to the court having jurisdiction of said causes, and said courts shall have the power to try and determine said cause and issue executions upon all judgments recovered therein or hereby transferred to said courts, and to do all things necessary and proper for complete determination of said causes.' Section 3 of said act provides further as follows: 'That all causes disposed of by the several justices of the peace of Alachua county and by the judge of the circuit court shall be as lawful and binding as if said causes had been commenced in their respective courts.' And section 4 of said act provides that 'this act shall go into effect on and after November 1, 1899.' It will be observed from these provisions that no certificate of transfer is required of the causes pending in said abolished county court, but it is made the duty of the clerk of said Whilom county court simply to transfer said causes to the respective courts that are the jurisdictional heirs thereof. By such transfer is meant simply that all the records, papers, and proceedings appertaining to said causes shall be transmitted to, and lodged with or in, the respective courts falling heirs to them. By section 15 of article 5 of our constitution, the clerk of the circuit court became the clerk, also, of such county court, upon its establishment; and, as he is the legal custodian of the records and proceedings of the circuit court, upon the abolition of this county court no formal transfer by means of any certificate from him became at all necessary to the exercise by the circuit court of jurisdiction over any cause therefore pending in such abolished county court over which the circuit court would by law have jurisdiction in the absence of a county court, but the act abolishing such county court of itself effected a transfer of jurisdiction.

Before entering upon the trial the defendant moved, upon his...