Gibson v. State

• Decision Date: 22 March 1890
• Citation: 7 So. 376,26 Fla. 109
• Parties: GIBSON v. STATE.
• Court: Florida Supreme Court

7 So. 376

26 Fla. 109

GIBSON v. STATE.

Florida Supreme Court

March 22, 1890

Appeal from circuit court, Polk county; G. A. HANSON, Judge.

Syllabus by the Court

SYLLABUS

1. When there has been trial for an offense, and a verdict of guilty and on motion of the defendant the court arrests the judgment, or grants a new trial, such defendant has not been in the jeopardy which forbids a second trial, whether upon the same indictment or a new one. The jeopardy ceased upon the arrest, or grant of a new trial; there being no right of appeal for the prosecution in this state.

2. The entry of a nol. pros. in such case is not a bar to another indictment for the same offense.

3. An oral charge, being merely a formal requirement, is, as to error, considered as waived, if not excepted to before retirement of the jury; and the statute which authorizes a party to embody in a motion for a new trial mistakes of the court not before excepted to gives that privilege as to substantial matters charged, but not as to formal matters connected with the delivery of the charge.

4. This court cannot assume, as against the presumption in favor of the action of the judge, that a charge of the court in relation to the conduct of a witness is erroneous when there is nothing in the bill of exceptions in regard to the nature of the occurrence.

5. While the court may charge the jury that they 'are not to try the case by the arguments of counsel,' if by that it be understood as only warning them that they should not be controlled in a decision on the facts by these arguments, as against their own judgment, yet, to charge forther that 'it is the study of a life-time, that they [counsel] learn how to distort, change, color, and discolor facts, in order that they may use them to the advantage of their clients,' is virtually depriving the prisoner of counsel and also an implied intimation that the facts as stated in the argument of counsel are not those shown by the evidence and in this latter respect is a violation of the statute which forbids a judge to charge on the facts. Such a charge disparages the profession unjustly, and tends to prejudice the prisoner, and is erroneous.

COUNSEL

J. B. Wall and H. C. MacFarlane, for plaintiff in error.

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

OPINION

MAXWELL J.

January 30, 1888, plaintiff in error was convicted of murder in the first degree. A new trial was granted on his motion, and while the case was still pending another indictment was found against him for the same offense. Sobsequently a nol. pros. was entered as to the first indictment. Thereupon plaintiff in error filed a plea of autrefois acquit to the second indictment, alleging that he had been put in jeopardy of his life by the trial under the first. The state attorney demurred to this plea, and the courts sustained the demurrer. A trial was then had on the plea of not guilty, a verdict of guilty with recommendation to mercy rendered by the jury, and motions in arrest of judgment and for a new trial were made by plaintiff in error, which the court overruled.

Before delivering his written charge, the judge addressed the jury orally in these words: 'Before proceeding to deliver my charge to the jury, by request of defendant's counsel, I desire to call attention to an unfortunate and very improper circumstance that occurred the other day in the presence of the jury, when one Mrs. Harvey was leaving the witness stand, and made a declaration that should not have been made, and for which she was subject to punishment for contempt, if her remark had been heard by the court; but, she being a woman, and counsel declining to ask any ruling thereon, she was not punished. I instruct you to banish from your mind that circumstance. It has nothing whatever to do with this case. As to the arguments made by counsel, you are not here to try the case by the arguments of counsel. It is the privilege, as well as the duty, of counsel to argue to the best advantage in the behalf of their clients. It is the study of a life-time, that they learn how to distort, change, color, and discolor facts, in order that they may use them to the advantage of their clients. They are not here as you and I are here, but as partisans. The court and jury come here disabused of every feeling of prejudice, every feeling of injustice, and to perform the solemn duty to ascertain the facts and the law, and nothing more.'

The questions presented by the assignment of errors are whether the plea ofautrefois acquit was rightly overruled, whether it was proper to address the jury orally in the language just quoted, and whether that language was not in itself error. The question on the instruction in regard to immateriality of proof as to the time of the commission of the offense is regarded as abandoned; there being no reference to it in the brief of counsel.

As to the plea, we think the court did not err in holding that it furnished no sufficient defense against the further prosecution of the prisoner. That a party cannot be twice put in jeopardy for the same offense is well established in law; but when there has been a trial for an offense, and a verdict of guilty, and on motion of the party convicted the court arrests the judgment, or grants a new trial, it is uniformly held that such party has not been in the jeopardy which forbids a second trial, whether upon the same indictment or a new one. The arrest of judgment or the new trial being at his instance, and for his benefit, and the prosecution being thereby suspended, the jeopardy ceases, and is, so far as a new indictment after arrest of judgment is concerned, as if it had never existed. 1 Bish. Crim. Law, § 1000. The rule is applicable in this state, because the prosecutor has no right of appeal for the reversal of the judgment of arrest, while in states where such appeal is allowed the jeopardy is considered as still existing. And, so far as a new trial is concerned when granted on motion of the defendant, the jeopardy of the previous trial is waived by him, and is not available for his defense. 1 Bish. Crim. Law, §§ 1001, 1003. See, also, People v. Casborus, 13 Johns. 350; Com. v. Hatton, 3 Grat. 623; State v. Phil, 1 Stew. (Ala.) 31; Joy v. State, 14 Ind. 139; State v. Holley, 1 Brev. 35; Gerard v. People, 3 Scam. 362; and State v. Walters, 16 La. Ann. 400.

Nor does the entry of a nol. pros. in the case make any difference. That is not a bar to another indictment for the same offense. Com. v. Wheeler, 2 Mass. 172; Lindsay v. Com., 2 Va. Cas. 345; Wortham v. Com., 5 Rand. (Va.) 669; Walton v. State, 3 Sneed, 687. A new trial having been granted, the case stood as if it had never been tried, and a nol. pros. entered then had no different effect in favor of the prisoner than if it had been entered prior to the trial.

In regard to the alleged error of the court in delivering a portion of the charge to the jury orally it does not appear from the record that any exception was taken to this at the time. Under the practice of this court in construing the statutes in relation to oral and written charges, such error, being as to a merely formal requirement, is considered as waived if not excepted to before retirement of the jury. Even if alleged as error on a motion for a new trial, it comes too late. The statute which authorizes ...