Roberson v. State

• Decision Date: 24 March 1903
• Citation: 45 Fla. 94,34 So. 294
• Parties: ROBERSON v. STATE.
• Court: Florida Supreme Court

34 So. 294

45 Fla. 94

ROBERSON v. STATE.

Florida Supreme Court, Division A.

March 24, 1903

Error to Circuit Court, Duval County; Rhydon M. Call, Judge.

Frank Roberson was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Sections 1523-1527 and 1532 of the Revised Statutes, relating to the re-establishment of lost or destroyed papers, records files, and proceedings, apply as well to the re-establishment of the papers, records, files, and proceedings in a criminal case as to a civil case, and under the provisions of such sections a lost or destroyed indictment in a criminal case may be re-established if the copy produced for re-establishment be conclusively shown to be an exact and accurate copy of the lost original.

2. Under the provisions of section 1532, Rev. St., notice of an application to the court for the re-establishment of lost or destroyed papers, records, files, and proceedings in a criminal case may be served upon the attorney of record for the defendant.

3. It is well settled that a court of record of general jurisdiction has inherent power, independent of any statute to re-establish its lost or destroyed records and proceedings.

4. After a criminal cause has been reversed by the appellate court on writ of error, and a new trial awarded, and the appellant 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 that prior to such second trial its mandate had been sent to such trial court, reclothing it with jurisdiction to retry such defendant, even though the transcript of record on such second writ of error fails to show the filing and lodgment of such mandate in the trial court prior to such second trial.

5. When an indictment is lost, the prosecution may proceed to trial on a substituted copy, if exact, and the proof of it conclusive.

6. Where the verdict of the jury in a capital case is as follows: 'We, the jury, find the defendant guilty of murder in the first degree; so say we all,' such verdict is sufficient if the defendant tried is the sole defendant named in the indictment, and the record of the trial shows clearly who was referred to in the use of the word 'defendant' in the verdict. The record in a cause may be resorted to in aid of a verdict, and when such record makes the verdict certain in every respect it is sufficient.

7. Malice need not be given express utterance to at the time of the killing, or at any other time, to constitute murder, but such malice may be inferred from all the facts and circumstances of the case, though no expression of such malice may ever have been given utterance to by the accused at any time.

COUNSEL

B. B. MacDonell and Walker & Shaylor, for plaintiff in error.

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

OPINION

TAYLOR C.J.

This is the third appearance of this case here. The defendant (plaintiff in error) was indicted on the 15th day of August 1899, in the circuit court of Duval county for the crime of murder, was there tried and convicted of murder in the first degree. On writ of error to this court such judgment of conviction was reversed, and a new trial awarded. Roberson v. State, 42 Fla. 223, 28 So. 424. After such reversal, the defendant was again tried in June, 1900, was again convicted of murder in the first degree, and such judgment of conviction on writ of error was again reversed here in March, 1901, and a new trial awarded. Roberson v. State, 43 Fla. ----, 29 So. 535, 52 L. R. A. 751. In July, 1902, the defendant was again tried and again convicted of murder in the first degree, and again seeks reversal here by writ of error.

Before entering upon the last trial of the case, the circuit judge, on motion of the State Attorney, after due prior notice of more than 10 days given to the attorney of record for the defendant, and in the personal presence of the defendant, made an order re-establishing copies in lieu of the destroyed originals of the record minute entries of the two preceding arraignments, pleas of the defendant, impanelments of juries, trials, verdicts, and sentences of the defendant, including the indictment and the record entries of its presentment in open court by the grand jury, and an alias of the last mandate from this court to the circuit court, showing the reversal by this court of such last former judgment of conviction and order for new trial; all of which was made necessary by the complete destruction of the originals of such records and files by the historic fire in Jacksonville of May 3, 1901. This proceeding was objected to at the time it was done by the defendant by a general objection, but without any assignment of any specific ground of objection, which objection was overruled, and the order made re-establishing copies of such records in place of the destroyed originals thereof. This action of the court is assigned as error here.

Section 1523 of our Revised Statutes provides as follows: 'All papers, written or printed, of any kind whatsoever, and the records and files of any official, court or public office, may be re-established in the manner hereinafter provided.'

Section 1527, Rev. St., provides in part as follows: 'Any paper, record or file re-established shall have the force and effect of the original.'

Section 1532, Rev. St., provides as follows: 'Lost or destroyed proceedings, and any paper or file affecting them, in any suit pending and undetermined in any court, may be re-established as follows: The person desiring such re-establishment shall file a substantial copy of such proceeding or writing in the circuit court, and shall give ten days' notice in writing to all parties to the suit or their attorneys of record, of an application to the court for the re-establishment of such proceedings, or paper, or file. Such notice shall be personally served at least ten (10) days before the time fixed for such application. Upon the hearing of such application the judge may, in such manner as he may think best, ascertain the facts, and upon such ascertainment determine the application.'

The procedure here prescribed was complied with in the re-establishment of the indictment and other proceedings in the cause, and, consequently, the first and second assignments of error, predicated thereon, must fail. That the indictment and other proceedings thus re-established were exact and accurate copies of the destroyed originals, there can be no question, since the copies submitted for re-establishment appear by the certificate of the clerk of this court appended thereto to have been taken from the certified transcript of the record filed here in the case in the former writ of error proceedings. After verdict the defendant moved in arrest of judgment upon the following grounds:

'(1) Said court did not obtain jurisdiction in said cause to try this defendant at this spring term, A. D. 1902, of said court, because, as will appear from an inspection of the record herein, this court granted a writ of error from the judgment of said court convicting the defendant June 30, 1900, of murder in the first degree, on the self-same charge as he has been convicted of in this case, upon which it also appears of record he was sentenced to death; said order of this court granting said writ of error bearing date June 30, 1900, and being returnable to the Supreme Court of Florida on the second Tuesday of January, 1901; and the record thereof was pursuant to said writ of error filed, and remained in the said Supreme Court. In support of this motion defendant refers to the certified copy of the transcript of record in said former judgment, as filed in said Supreme Court, and which certified copy was filed in this present case, and made a part of the record herein, which, together with the copy of the original indictment in this cause, was, by order of this court, 're-established in the place of the original of said record, including said indictment destroyed by fire, and to stand in place of said originals in all things with the same force and effect as said original.' Said order of re-establishment bearing date June 10, 1902, as will further appear from said record so re-established. The jurisdiction of said Supreme Court had not been divested at said 10th day of June, 1902, said record failing to show that any mandate from said Supreme Court had been issued or filed in this court.

'(2) Said records and files in said cause show that no mandate other than one in which 'Duplicate' filed by the clerk of this court June 20, 1902, bearing date April 5, 1901, under the hand of the clerk of the Supreme Court of Florida, and under its seal, has been filed in said court in the said cause.

'(3) The record herein fails to show as a part thereof the mandate of the Supreme Court of Florida remanding said cause for retrial to this court, although said record shows a writ of error issued by order of this court, dated June 30, 1902, from the Supreme Court to this court, to a judgment rendered against the defendant under the indictment originally found herein.

'(4) The record shows that the defendant was tried upon an alleged copy of the original indictment found against the defendant.

'(5) The defendant was tried upon a copy

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