Montgomery v. State

• Decision Date: 11 December 1907
• Citation: 45 So. 813,54 Fla. 73
• Parties: MONTGOMERY v. STATE.
• Court: Florida Supreme Court

45 So. 813

54 Fla. 73

MONTGOMERY v. STATE.

Florida Supreme Court, Division A.

December 11, 1907

Error to Criminal Court of Record, Duval County; Samuel T. Shaylor Judge.

I. W Montgomery was convicted of embezzlement, and he brings error, and the Attorney General suggests that there is no properly authenticated bill of exceptions in the transcript of the record. Finding against the bill.

See 42 So. 894.

Syllabus by the Court

SYLLABUS

The statutes of the state and the rules governing the circuit courts provide the manner and time for making up and filing a bill of exceptions in a cause so that it may become a part of the record; and, unless such statutes and rules are complied with, an attempted bill of exceptions is a nullity, and will not be considered by the appellate court.

It is the duty of the plaintiff in error to have the bill of exceptions in a cause properly prepared as the rules direct and duly authenticated, as required by the statute, during the progress of the cause or within the time allowed by an order duly made and entered pursuant to rule 97 of the circuit court rules. If duly prepared and presented for authentication within the time allowed, the bill of exceptions may be authenticated afterwards as of the day on which it was properly presented.

It is the duty of the judge under the statute to authenticate by signing any bill of exceptions taken during the progress of the cause and tendered to him, if it fairly states the truth of the matter and the exception taken; and the same, when signed, is a part of the record. When the judge refuses to sign a bill of exceptions properly tendered, it is lawful for three persons to sign the same in the presence of the judge and to certify that it was presented to the judge and he refused to sign it, and such bill of exceptions will then be valid and have the same force as though it were signed by the judge, if it appears that such persons were present at the trial and had knowledge of the matters stated and the truthfulness thereof is certified to by them.

Where a party does everything in his power to have a bill of exceptions authenticated within the time allowed, but for reasons beyond his control there is no judge competent to authenticate the same within the time allowed, the time during which there was no judge after the bill of exceptions was duly presented where the judge in law should be may not be counted against a party not delinquent.

Where it appears, and is not controverted, that a bill of exceptions in a cause was duly prepared for presentation to the judge of the criminal court of record within the time allowed, but that the judge at such time was suspended from office, and that no successor to fill the office of such judge was appointed or qualified until after the time allowed for the presentation of the bill of exceptions, and there was under the law no other judge to whom the same could have been presented for authentication, and it appears that the party has been diligent and exerted every effort to have the bill of exceptions authenticated within the time allowed, he may be permitted to present the original bill of exceptions to the judge who subsequently qualified with proof of its correctness and of its preparation and filing in the clerk's office within the time allowed for its authentication, so that such judge may sign the same nunc pro tunc as of the date of its presentation to the clerk for filing. When the original bill of exceptions is duly authenticated, the plaintiff in error may take proper steps to have the certified transcript on file in the Supreme Court made to conform to the duly authenticated record below.

COUNSEL

I. L. Purcell, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State.

OPINION

WHITFIELD J.

An information was filed in the criminal court of record for Duval county charging the plaintiff in error with embezzlement of money held by him as treasurer of a lodge of Knights of Pythias. The defendant, after pleading not guilty, was convicted, and on writ of error assigns as errors the denial of challenges to the array of jurors and the denial of a motion for a new trial.

The matters upon which all the assignments of error are based, for the purposes of review by the appellate court, must be incorporated in a duly authenticated bill of exceptions properly transcribed in the certified transcript of the record sent up in response to the writ of error.

The Attorney General for the state suggests that there is no properly authenticated bill of exceptions in the transcript of the record in this cause. There appears in the transcript many pages of matter over a certificate: 'We, the undersigned, do hereby certify that we were present at the trial of the above-entitled cause; and have read the bill of exceptions herein filed; and we hereby certify that the same sets forth a true copy of the proceedings thereof, and all the evidence given therein. Signed this 21st day of June, A. D. 1907. N. P. Bryan. L. R. Taylor. N. Simpson Gaines.' Above this certificate is a statement that at the time for presentation of the bill of exceptions, there being no judge of the court by reason of the suspension of the judge, the same was presented to the three persons for authentication.

At common law, any ruling of the trial court involving points of law growing out of incidents arising at the trial which were not required to be included in the record proper of the cause and which were by the party objecting deemed harmful to him could be reviewed by an appellate court on bills of exceptions. Such bills of exceptions were prepared and authenticated by the presiding judge during the progress of the cause.

Section 1696 of the General Statutes of 1906 is as follows:

'1696 (1268). Procurement of Bills of Exceptions.--The judge of any court of this state, upon a trial at law in said court, shall sign, upon request, any bill of exceptions taken during the progress of the cause and tendered to the court if said bill as tendered fairly states the truth of the matter and the exception designed to be taken, and the same shall, when signed, become a part of the record of such cause; and in case the judge refuses to sign a bill of exceptions when so tendered for that purpose, it shall be lawful for three persons to sign the same in the presence of the judge and certify that the same was presented to the judge and he refused to sign it, which bill shall be as valid and have the same force as though it were signed by the judge of said court; and

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