Hodge v. State

• Decision Date: 28 January 1892
• Parties: HODGE v. STATE.
• Court: Florida Supreme Court

10 So. 556

29 Fla. 500

HODGE v. STATE.

Florida Supreme Court

January 28, 1892

Error to circuit court, Marion county; JESSE J. FINLEY, Judge.

Green W. Hodge was indicted December 20, 1888, for murder in the first degree, for after a conviction of the crime charged after a conviction of the crimecharged, and reversal by the supreme court, (26 Fla. 11, 7 South. Rep. 593,) was tried and convicted on the 2d day of November, 1890, of manslaughter in the third degree, and sentenced to imprisonment in the state penitentiary, at hard labor, for two years and six months. He brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The oath or affidavits required by the act of March 11, 1879 (section 41, p. 466, McClell. Dig.,) to satisfy the court that the testimony of a witness, whose deposition it is desired to take under a commission, is material and necessary to the defense of the accused, must present facts naturally and reasonably calculated to satisfy the judgment of the court that such testimony is material and necessary to the defense. An affidavit of counsel stating that he is acquainted with the case of the defendant, and what is necessary for his defense, and verily believes that the testimony of a named witness, to whom interrogatories calling for his opinion as an expert, and accompanying the motion for a commission, are addressed, 'is necessary, material, and important to the defendant,' is not sufficient.

2. A plea of not guilty is a waiver of the right to plead in abatement in a criminal cause.

3. If there can ever be a review by an appellate court of a ruling of a trial court refusing to permit the withdrawal of the general issue for the purpose of pleading in abatement of the indictment, it will not be done where the accused has waited 21 months after the finding of the indictment, and there has already been a trial on the merits, and the period barring a new indictment has elapsed.

4. A charge to a jury cannot be made a part of the record except by a bill of exceptions, or by being signed, sealed, and filed by the circuit judge in accordance with the act of March 2, 1877, (section 36, p. 338, McClell. Dig.,) and will not be reviewed by the appellate court when not made a part of the record.

5. A verdict may be received and entered on Sunday, but it seems that judgment or sentence cannot be lawfully rendered on that day. The former proceeding is not ground for a new trial.

6. The failure of the record to show that the judge asked a prisoner, before pronouncing sentence upon him, if he had anything to say why the sentence of the law should not be passed upon him, is not ground for setting aside the judgment, where the conviction is not of a capital offense.

COUNSEL Miller & Spencer, for plaintiff in error.

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

OPINION

RANEY C.J.

The first allegation of error in the assignment of errors furnished under the requirement of the statute (section 4, p 455, McClell. Dig.) is the refusal of the circuit judge of a motion, made in open court October 21, 1890, for the issuance of a commission to take the testimony of one E. C. Spitzka, residing at 712 Lexington avenue, New York, on interrogatories filed five days previously at the same term.

The statute of March 11, 1879, (sections 41 et seq., p. 466, McClell. Dig.,) enacts that when any person is arraigned before a circuit court upon indictment or information, charged with crime which is by law a felony, and he shall satisfy the court by his oath in writing, or by affidavits of other credible persons, that the testimony of absent persons is material and necessary to his defense, and such witnesses reside beyond the jurisdiction of the court, or are so sick or infirm that with diligence they cannot be procured to be in attendance at the same or next succeeding regular or special term at which the case may be tried, it shall be lawful, and is made the duty of the judge, upon the proper application of the accused or his attorney, and the filing of the interrogatories, to order that a commission be issued to some competent person or persons to take the deposition of the witness, to be used on the trial.

If we are permitted to consider the interrogatories in the absence of a bill of exceptions duly incorporating them, we see that their purpose is to prove by the proposed witness, as an expert, that there is such a thing as transitory or impulsive insanity, and also its nature and effect, and that certain assumed or supposed conditions and acts of a person were symptoms of his being the victim of such insanity, and that, in the opinion of the witness, a person acting in a described supposed manner, under described supposed conditions, was insane and irresponsible.

The affidavit presented in support of the application for the commission was made by Mr. Hugh E. Miller, one of the prisoner's counsel. The substance of Mr. Miller's affidavit is that he 'is acquainted with the case of the defendant, and what is necessary and material to his defense; that he verily believes that the testimony of' Dr. Spitzka, residing at 712 Lexington avenue, in the city of New York, 'is necessary, material, and important to the defendant,' and that witness resides beyond the jurisdiction of the court. It might be said of this affidavit that it is evidence that Mr. Miller had satisfied himself that the testimony of Dr. Spitzka was 'material and necessary' to his client's defense; but, certainly and obviously, the statute, when it says the prisoner shall satisfy the court that the testimony of the absent person is material and necessary to his defense, means that there shall be presented at least some facts which will reasonably and naturally satisfy the judgment of the court. It is palpable that there is nothing here to indicate to the court that the prisoner intended and would be able, or even expected, to prove on the trial the supposed facts which would make the opinions proposed to be elicited from Dr. Spitzka of any use to him in the trial of the cause. There is nothing for the judge to do but refuse the motion. Besides what has been said, it is apparent from the record that nearly two years had passed since the indictment was found, and that there had been a former trial, and it does not appear why the application was not made before this time, when the cause was about to be tried the second time; and again, in the absence of a bill of exceptions, how can it be assumed that there was any evidence on the trial of a character to make Dr. Spitzka's opinion of any value to the prisoner or his defense? There is nothing whatever to support the alleged assignment of error. This conclusion is not inconsistent with the ruling in Newton v. State, 21 Fla. 53.

Another error assigned is the refusal of the trial court to permit the prisoner to withdraw his plea of not guilty, and interpose a plea in abatement. This motion was made immediately after the denial of the preceding motion for the commission to take the deposition of Dr. Spitzka. The prisoner had already been tried upon the plea of not guilty. By this plea he waived his right to plead in abatement. By a plea in bar, voluntarily pleaded, it seems all matter of abatement is waived; and, though it may be in the discretion of the trial court to permit the withdrawal of such a plea for the purpose of pleading in abatement, that discretion will not be reviewed or interfered with on appeal. Savage v. State, 18 Fla. 909; Adams v. State, 28 Fla. ----, 10 South. Rep. 106. Pleas in abatement should be pleaded before pleading in bar. 1 Whart. Crim. Pl. § 426; Savage v. State, 18 Fla. 909, 949. After the general issue pleaded, the defendant cannot plead in abatement; and according to the old authorities the proper time for the plea is upon his arraignment. 1 Bish. Crim. Proc. § 175; 2 Hale, P. C. 175; 1 Chit. Crim. Law, 447; Kinloch's Case, Fost. Crown Law, 16; Whart. Crim. Pl. § 426; Martin v. Com., 1 Mass. 347; State v. Farr. 12 Rich. Law, 24. Chitty says it was always necessary to plead it before and plea in bar, as the defendant will be estopped by an issue. 1 Chit. Crim. Law, marg. p. 447. If there can ever be a review by an appellate court of a ruling refusing to permit the withdrawal of the general issue for the purpose of pleading in abatement, we find no such authority; but, if there can, it will not be done in a case in which the party has waited over a year and nine months after indictment found, and after there has already been a trial on the plea of not guilty; and when more than two years have passed since the alleged killing, by which lapse of time any new indictment in this case has become barred. Johnson v. State, 27 Fla. ----, 9 South. Rep. 208. To permit such a practice would encourage all kinds of delay, and overturn the established rule, which requires that all matters in abatement should be pleaded primarily. The fact that the proposed plea here tends to affect the legality of the grand jury does not change the rule, or create any exception to its application. There is, moreover, if an excuse for the delay would have any effect in favor of the assignment of error, not even a pretense of an excuse or reason for the delay in presenting the proposed plea.

It it also assigned as error that the court altered instructions asked for by the prisoner, and in charges given in lieu of those asked, and in refusing to give charges as requested. We have already stated that there is no bill of exceptions; and not only is this so, but it is also a fact that there is not in the transcript before us anything which can be recognized or treated as a charge requested or given or refused. There is upon no paper incorporated in the transcript before us and purporting to be a charge offered, given,...