Golding v. State

• Court: Florida Supreme Court
• Writing for the Court: MABRY, J.
• Citation: Golding v. State, 31 Fla. 262, 12 So. 525 (Fla. 1893)
• Decision Date: 07 March 1893
• Parties: GOLDING v. STATE.

12 So. 525

31 Fla. 262

GOLDING v. STATE.

Florida Supreme Court

March 7, 1893

Error to circuit court, Suwannee county; John F. White, Judge.

Indictment against Willie Golding for murder in the first degree. A conviction of murder in the second degree was reversed, on appeal. On a second trial, he was motion of murder in the first degree, and, his motion in arrest of judgment being overruled, he brings error. Judgment reversed.

Syllabus by the Court

SYLLABUS

1. The conviction of an accused of murder in the second degree upon an indictment charging him with murder in the first degree has the effect in law to acquit him of the higher offense charged in the indictment, and he cannot legally be put upon trial a second time for the higher offense. Johnson v State, 9 South. Rep. 208, 27 Fla. 245, followed.

2. A motion in arrest of judgment reaches only such defects as are apparent upon the record, but in a case where a judgment rendered has been reversed, and a new trial granted, and a second trial is had upon the same indictment in the same court, the entire proceedings constitute one record, and a motion in arrest of judgment, on the ground of a former acquittal of a higher offense charged in the indictment, will be good where such fact appears upon the record.

COUNSEL J. C. Gallaher, for plaintiff in error.

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

OPINION

MABRY J.

In February, A. D. 1890, the plaintiff in error was indicted during a term of the circuit court held in Suwannee county for murder in the first degree, and during the same term of the court was convicted of murder in the second degree. Upon a writ of error brought to this court at its June term A. D 1890, the judgment of the circuit court upon the conviction of murder in the second degree was reversed, and a new trial awarded. Golding v. State, 26 Fla. 530, 8 South Rep. 311. Upon the return of the mandate of this court to the Suwannee circuit court, the plaintiff in error was again tried, during a term of court held in February, A. D. 1891, upon the same indictment, and convicted of murder in the first degree, with recommendation to the mercy of the court. A motion in arrest of judgment was made in behalf of the accused, and one of the grounds of this motion is as follows: 'That at the winter term of this court, for the year 1890, the said Willie Golding was tried for the same offense, and not another, and was tried and convicted of murder in the second degree, and was thereby acquitted of murder in the first degree, for which he is now convicted.' This motion was overruled, and the accused sentenced to the penitentiary for life, and the case is again before us by writ of error.

The conviction of...