Mcnish v. State

• Decision Date: 08 March 1904
• Citation: 47 Fla. 69,36 So. 176
• Parties: McNISH et al. v. STATE.
• Court: Florida Supreme Court

36 So. 176

47 Fla. 69

McNISH et al. v. STATE.

Florida Supreme Court

March 8, 1904

In Banc. Error to Circuit Court, Columbia County; Lucius J Reeves, Judge.

Ben McNish and Sam Bush were convicted of burglary, and bring error. Affirmed.

See 34 So. 219.

Syllabus by the Court

SYLLABUS

1. An appellate court, as well as every other court, will take judicial notice of its own records, so far as they appertain to the case before it for consideration, but will not take judicial notice, in deciding one case, of what may be contained in the record of another and distinct case, unless it be brought to the attention of the court by being made a part of the record of the case under consideration.

2. A court takes judicial notice of all prior proceedings of record in a case, and will therefore take such notice of a former trial, and the verdict returned on such trial, on the hearing of a demurrer to a plea in bar of once in jeopardy by reason of such former trial and verdict.

3. After the judgment in a criminal case has been reversed by the appellate court on writ of error, and a new trial awarded, and the appellate court has sent its mandate to the trial court, on a second conviction, and writ of error therefrom, the appellate court will take judicial notice from its own records, as likewise should the trial court from its own records, of such reversal and remanding.

4. The reversal of a judgment in a criminal action by the appellate court, and the awarding of a new trial, do not preclude the trial of the defendant again for the same offense upon the same indictment; and such second trial will not put the defendant in jeopardy a second time for the same offense within the meaning of the Constitution of this state.

5. In a criminal action, 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.

6. No error was committed by the trial court in sustaining the demurrer to the plea in bar interposed by the defendants setting up the former jeopardy; the records of such court showing the former trial, and that the judgment entered therein was reversed and a new trial granted by the appellate court.

7. Bailiffs of a former jury are not absolutely disqualified under the statutes of this state, from acting as jurors at a subsequent trial; and, by accepting a juror who would be subject to challenge for such cause, the defendant waived such right, and it is too late after verdict to claim the benefit of it. It is the right and duty of defendants in criminal trials to discover on the voir dire examination of talesmen offered as trial jurors grounds of challenge for cause to such talesmen; and, if they fail to do so, they cannot, as a general rule, after verdict, avail themselves of their ignorance of the existence of such grounds of challenge.

8. Objections to the qualifications of jurors who might be subject to challenge for cause not raised in the trial court will not be considered by an appellate court.

9. While trial courts should exercise great caution in admitting confessions of the accused in evidence, the fact of the accused being in chains at the time the confession was made, and that the officer to whom the confession was made had a pistol in his pocket, does not necessarily render said confession inadmissible.

10. Errors assigned and not argued will be treated as abandoned. Where one of the errors assigned is based upon the overruling of the motion for a new trial, and said motion consists of a number of grounds, an appellate court will consider only such grounds as are argued.

11. Where there is evidence to support the verdict, it will not be disturbed or set aside by an appellate court, as being against the evidence, where its propriety depends entirely upon the credibility of conflicting witnesses.

COUNSEL A. J. Henry, for plaintiffs in error.

J. B. Whitfield, Atty. Gen., for the State.

OPINION

SHACKLEFORD J.

The plaintiffs in error, together with Will Polite, were jointly indicted at the fall term, 1902, of the circuit court for Columbia county, for breaking and entering a dwelling house with intent to commit a felony, and were jointly tried at the spring term, 1903, which trial resulted in the acquittal of the said Will Polite and the conviction of plaintiffs in error, who were sentenced to confinement in the State Prison at hard labor for a period of two years. From this judgment and sentence plaintiffs in error seek relief here by writ of error.

The indictment was in the usual form, to which all the defendants jointly interposed a plea in bar, setting up their arraignment and trial at the fall term, 1902, of said court upon the same indictment; the submission of the issue to the jury; that evidence on behalf of both the state and the defendants was submitted; argument of counsel had; the charge of the court given; the verdict of said jury finding said defendants guilty of breaking and entering a dwelling house with intent to commit a felony (said verdict being set out in full); and the discharge of said jury after the rendition of said verdict without the consent of said defendants, and without any necessity therefor; the records of the court being expressly referred to in said plea. A demurrer to this plea was interposed by the state and was sustained by the court, which ruling forms the basis of the first assignment of error. We are of the opinion that no error was committed here, though it probably would have been the better practice for the state to have replied to the plea, instead of demurring thereto. That an appellate court, as well as every other court, will take judicial notice of its own records, as far as they appertain to the case in hand, but will not take notice, in deciding one case, of what may be contained in the record of another and distinct case, unless it be brought to the attention of the court by being made a part of the record of the case under consideration, see National Bank of Monticello v. Bryant, 13 Bush, 419; Gans v. Holland, 37 Ark. 483; Thornton v. Webb, 13 Minn. 498 (Gil. 457); Dawson v. Dawson, 29 Mo.App. 521; 17 Amer. & Eng. Ency. of Law (2d Ed.) 925; 4 L. R. A. 34, note. And see especially State v. Bowen, 16 Kan. 475, to the effect 'that the court takes judicial notice of all prior proceedings in a case, and it is unnecessary to offer evidence of a former trial, and the verdict returned on such trial, on the hearing of a plea in bar of 'once in jeopardy' by such trial and verdict.'

This is the second time that this case has been brought to this court on writ of error. See McNish v. State, 45 Fla. ----, 34 So. 219. For the reasons set forth in the opinion therein, the judgment of the circuit court entered upon the verdict mentioned in this plea was reversed, and the case remanded for a new trial. The records of this court so show, and so must the records of the circuit court; and we take judicial cognizance of our records, in so far as they relate to this case. See Roberson v. State, 45 Fla. ----, 34 So. 294. That the reversal of a jusgment in a criminal action by this court, and the awarding of a new trial, do not preclude the trial of the defendant again for the same offense upon the same indictment, and that such second trial will not put him in jeopardy a second time for the same offense, within the meaning of the Constitution, see Lovett v. State, 33 Fla. 389, 14 So. 837; Gibson v. State, 26 Fla. 109, 7 So. 376; Johnson v. State, 27 Fla. 245, 9 So. 208; Golding v. State, 31 Fla. 262, 12 So. 525.

The second error assigned is as follows: 'The court erred in proceeding with the trial with the jury as impaneled, notwithstanding the disqualified juror.'

Turning to the bill of exceptions as set forth in the record, we find that it discloses that during the trial of the case, after several witnesses had been examined, the state attorney stated to the court that it had come to his knowledge since the noon recess was taken that day that a member of the jury who had been sworn as a juror in said case was the bailiff of the jury that tried said case before, and sat in the courtroom during the former trial, and...