Potsdamer v. State

• Decision Date: 01 June 1880
• Citation: 17 Fla. 895
• Court: Florida Supreme Court
• Parties: GOTTSCHALK POTSDAMER, PLAINTIFF IN ERROR, v. THE STATE OF FLORIDA, DEFENDANT IN ERROR

17 Fla. 895

GOTTSCHALK POTSDAMER, PLAINTIFF IN ERROR, v. THE STATE OF FLORIDA, DEFENDANT IN ERROR

Supreme Court of Florida

June 1, 1880

Rehearing Denied 17 Fla. 895 at 904.

Writ of Error to the Circuit Court for Duval county.

The court adjourned for the term without any order extending the time for settling a bill of exceptions having been applied for or obtained. Several days after the adjournment the Circuit Judge signed the paper purporting to be the bill of exceptions, it having previously to his signing the same been endorsed by the State Attorney and counsel for the prisoner as setting forth the evidence correctly.

The charge referred to in the opinion of the court in the paragraph immediately preceding that relating to the "eighteenth error" assigned, was as follows: that "to authorize the presumption that malice, proved to have existed at a particular time, continued down to the time of the homicide, it must be of a fixed and definite kind, and even then this evidence of its existence may be controlled by facts showing that the killing was on a sudden provocation and did not proceed from prior malice; but if the malice which enters into the act of murder is shown to have existed at a particular time anterior to the killing, its existence is presumed to have continued down to the time of the homicide. "

The other facts of the case are stated in the opinion of the court.

Judgment affirmed.

W. M Ives, John T. Walker and John E. Hartridge for Plaintiff in Error.

The Attorney-General for the Defendant in Error.

OPINION

THE CHIEF JUSTICE

Plaintiff in error was indicted in Columbia county for murder in the first degree, and upon trial was convicted by the verdict of the jury of murder in the second degree, and sentenced to imprisonment for life "in the State Penitentiary or State Prison."

A motion for a new trial was made and denied, but the grounds of the motion are not stated in the record.

As to the errors assigned: The first, third and fourth relate to the summoning, qualifications and organization of the grand jury. The rule is that such objections must be taken by motion or plea in abatement before pleading to the indictment. It is not proper ground of a motion for a new trial. Gladden vs. The State, 13 Fla. 623; Burroughs vs. State, 17 Fla.

The second error assigned is that the record does not show that the grand jury was duly sworn, or what oath was administered.

The record shows that the grand jurors were "empaneled and sworn in the following order," (giving their names) and were charged by the court. Two others not then present, afterwards appeared, and each "was sworn as a grand juror," and went to the jury room. On the next day "the grand jury came into court and presented the following indictment." Then follows the indictment, the caption of which states that the grand jurors, "duly chosen, empaneled and sworn, diligently to inquire and true presentment make in and for the body of the county of Columbia upon their do present," &c.

1 Bishop Crim. Pro., § 1171, says: "As to the swearing of the grand jury, the indictment must appear in the record to have been found upon oath. And if the record undertakes to set out the oath, and sets out one which is insufficient in form, it will be ill. But it need not give the form, and if it states that the jurors were duly sworn, not mentioning by what form of words, this will be sufficient." This is supported by an abundance of authorities citied by Mr. Bishop.

In one of the briefs it is said that the caption of the indictment does not recite that the grand jury "on their oath present." The use of this form of words is not essential if it appears that the grand jury was duly sworn. It is said, 1 Chitty's Crim. Law, 334, that if the caption proceed without saying "upon their oath," the caption will be invalid. The use of these words, however, is intended to indicate that they had been sworn as grand jurors before making the presentment. But not only does the record show that the grand jury was empaneled and sworn, but the caption itself says they were "duly sworn," and in the body of the indictment they say, "and so the jurors aforesaid upon their oath aforesaid, do say," &c. This would seem to be abundantly explictit. The question, however, can hardly arise upon a motion to set aside the verdict and grant a new trial.

The fifth, six and seventh assignments of error are, that the record does not show that the petit jurors were "good and lawful men," or that they were duly empaneled and sworn, or that the oath required by law in capital cases was administered.

The record does not show that any question was raised on empaneling the jury as to their qualifications. In 1 Bish. Crim. Pro., § 1182, it is said upon authority that if the record shows that the jury were duly selected, empaneled and sworn, the law will infer that they were good and lawful men.

No objection having been made at the trial, it is too late to object here, as there is no opportunity in the appellate court to correct an error which might have been avoided by ascertaining the qualifications of the jurors when they were called at the trial. Bishop Crim. Pro., § 666.

The incompetency must appear or the verdict will not be disturbed. 12 Fla. 151.

As to the oath, counsel for defendant cites 47 Ala. 9, 30, 31, to show that the oath as prescribed by law in capital cases must appear to have been administered. In that case the record showed that an oath different from that prescribed by law was administered, and the court held that it thus appeared that the statutory oath was not taken. The court remarks, however, that "if it were stated that the jury were duly sworn according to law, it might be presumed that they were sworn in the form required by the statute."

In 2 G. Green's Rep., (Iowa,) 285, the court say in a capital case: "Had their oath contained the substance of this (the statutory form) in any other form, we should, after verdict, have regarded it as sufficient. Or had the record remained silent upon this point, we should have presumed that they had taken the legal oath." See also 6 Eng., (Ark.,) 465. The record here shows that the jury was "called, empaneled and sworn." Nothing being said about the form of the oath, but simply that the jury was sworn, it must be presumed, no question being raised in the court below, that they were properly sworn. The record does not show that any error was committed in this respect.

The eighth error assigned is that the sentence is not warranted by law.

The sentence was imprisonment in the "State Penitentiary or State Prison." The statute in 1868 organized a "State Penitentiary" for the confinement of convicts. In 1871, (chap. 1835,) and in 1877, (chap. 3033,) the legislature organized the "State Prison," and provided (sec. 1, chap. 3033) that "the word Penitentiary, whenever the same is used in any of the acts of this State as a place of punishment for crime, shall be construed to mean and refer to the State Prison." There is but one State institution of this character in this State, and there can be no difficulty in determining what is meant by the words of this sentence by the court. The State Penitentiary is the State Prison. The first section of the last act calls it a "State Prison." The 22nd section says "all prisoners shall be delivered to the Adjutant General at the Penitentiary," &c. The words are used to indicate the same prison or place of confinement. It cannot be said that the sentence is in the alternative.

The errors assigned numbered 10 to 17 inclusive relate to the charge and the instructions asked for by the counsel for defendant.

The act of 1877, chap. 2096, requires of the judge in capital cases, if he charge the jury, to do so in writing, upon the law of the case, and if the parties or their attorneys present to him instructions in writing upon points of law or exceptions taken, arising on the trial, it shall be the duty of the judge to declare in writing to the jury his ruling thereupon as presented, and pronounce the same to the jury as given or refused. These charges, and instructions, and rulings, shall be signed and sealed by the judge and by him filed, and form a part of the record in the case, immediately after delivered.

There are among the papers constituting this record what purports to be a charge by the judge, and also what purports to be instructions asked for, and upon the most of them the judge has written "given" or "refused," and signed his name thereto, but without sealing the same. They are certified to by the clerk as though a part of the record.

The statute is a positive requirement of a duty by the judge, as was remarked in the case of Baker vs. The State at the last term. (17 Fla.) It is also there remarked that these omissions are fatal errors, but it was not intended to say that advantage could be taken of them without presenting them to this court by exceptions duly taken and authenticated. It is also a fatal error if the judge rule wrong upon a material point to the injury of a party in respect to testimony, its admission, relevancy and effect; but advantage can only be taken of the error by an exception seasonably taken and brought here according to the law and practice of the courts.

The paper called a bill of exceptions here presented is a nullity, because it was not prepared and signed in proper time, either during the term or within a time fixed by order of the court. These charges and instructions and the rulings of the judge are not signed and sealed by the judge, and there appears no exception to the omission. As they are not sealed they are not "a part of the record in the case," and we cannot, therefore, consider them for any purpose except in...