Smithie v. State
| Decision Date | 13 June 1924 |
| Citation | 88 Fla. 70,101 So. 276 |
| Parties | SMITHIE v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Lafayette County; M. F. Horne, Judge.
Ben Smithie, alias Bennie Smithie, was convicted of manslaughter and he brings error.
Affirmed.
Syllabus by the Court
Intervening Sundays counted as part of 10-day period after adjournment of Legislature, in which Governor may consider bill and approve or disapprove it. Under section 28 of article 3 of the Constitution, which, among other things, provides that when the Legislature presents a bill that has passed that body to the Governor for his approval it shall become a law, if not returned by the Governor within 5 days after it shall have been presented to him (Sunday excepted), and that 'if the Legislature, by its final adjournment, prevent such action such bill shall be a law, unless the Governor, within 10 days after the adjournment, shall file such bill, with his objections thereto, in the office of the secretary of state who shall lay the same before the Legislature at tis next session, and if the same shall receive two-thirds of the votes present it shall become a law,' intervening Sundays are counted as part of the 10 days' time after adjournment of the Legislature in which the Governor may consider the bill and approve or disapprove it.
Bill held to become law without Governor's signature. A bill which had passed the Legislature was presented by that body to the Governor on June 3, 1921. On that day the Legislature adjourned sine die. On June 14. 1921, the Governor sent the bill with his objections thereto to the secretary of state who filed the same. The intervening 5th and 12th of June came on Sundays. Held, that more than 10 days expired between the final adjournment of the Legislature and the date when the Governor sent the bill to the secretary of state with his objections, and that the bill became a law without the Governor's signature.
Properly enacted bill becomes law without Governor's approval, unless vetoed within constitutional period. A bill properly enacted by the Legislature becomes a law without the Governor's express approval, unless he vetoes the same within the time limited by the provisions of section 28 of article 3 of the Constitution.
Rule of computation of time within which act required done, stated. In the computation of time within which an act is required to be done, the rule, in the absence of statutory expression to the contrary, is that intervening Sundays which fall on neither the first nor last day are to be computed, and that if the act is required to be done within a certain number of days exceeding a week, Sundays are not excluded from the computation, but if the number of days is less than 7, Sunday is not counted.
Statute requiring judge to charge jury immediately on conclusion of evidence secures right to defendant which he may waive. A statute, which requires the judge in criminal trials to charge the jury immediately upon the conclusion of the evidence, does not prescribe a hard and fast rule, a divergence from which constitutes of itself reversible error, but merely secures to the defendant a right which he may waive if he desires.
Assignment of error that verdict not sustained by evidence not considered, where motion for new trial and order overruling it not included in bill of exceptions. Upon a writ of error, where there is an assignment of error based upon the order of the trial court overruling a motion for a new trial upon the ground that the verdict is not sustained by the evidence, where the motion for a new trial and the order overruling it are not included in the bill of exceptions, this court will not consider the assignment of error.
If one of grouped assignments of error fail, they all fail. Where assignments of error are grouped in the brief of counsel for the plaintiff in error, if one assignment fails, they all fail.
Evidence tending to show motive or cause for antagonism between parties admissible. In the trial of an indictment for murder, evidence tending to show motive or cause for an antagonism between the two men is admissible as against the defendant.
Evidence showing illegitimate intimacy between accused and sister-in-law of deceased held admissible. In the trial of an indictment for murder, evidence tending to show an illegitimate intimacy between the defendant and the sister-in-law of the deceased, who provided a home for her and stood somewhat in the position of parent to her, is admissible against the defenant to show the relation of the two men to each other and to explain previous threats made by the defendant and why he went armed.
Competent evidence tending to show motive not inadmissible, because tending to show accused guilty of separate crime. In the trial of an indictment for murder, evidence which is admissible against the defendant to establish a motive for the commission of the criminal offense with which he is charged, and upon which he is being tried, is not rendered inadmissible merely because it also tends to prove that he had been guilty of another crime.
W. P. Chavous and J. M. McKinney, both of Cross City, for plaintiff in error.
Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called the defendant, was indicted for the murder, on March 9, 1922, of L. T. Walker in Lafayette county, and was convicted of the crime of manslaughter. He seeks to reverse the judgment, because of errors alleged to have been committed by the trial court in overruling objections by him to the admission of certain evidence, and in requiring the attorneys to make their arguments to the jury upon the merits, before the court delivered its charge.
Section 2696 of the Revised General Statutes, relating to charges to juries on the law of the case and direction of verdicts, was amended by chapter 9364, which appears in the printed Acts of 1923. The amendment contains the following provision:
'That at the trial of any criminal prosecution or civil action or proceeding at law in the courts of this state, the judge presiding shall charge the jury on the law of the case in the trial, at the conclusion of the evidence and before argument of counsel.'
The history of this legislation is as follows: The act originated in the House during the session of 1921, and was known as House Bill No. 50. It did not contain the above-quoted clause as it was introduced and passed in the House on April 26th. On May 25th it was amended in the Senate by the addition of the clause above quoted, and passed that body as amended. On June 2, 1921, the House concurred in the Senate amendment; no record of the yea and nay vote being made then nor entered on the journal. Such procedure, however, has been held to be valid and in compliance with the constitutional requirement that the vote on the 'final passage of every bill or joint resolution shall be taken by yeas, and nays, to be entered on the journal of each House.' Section 17, art. 3, Constitution. See State ex rel. Lamar v. Dillon, 42 Fla. 95, 28 So. 781.
The bill as passed was enrolled and signed and sent to the Governor on June 3, 1921, and on that day the Legislature adjourned. The term had expired by limitation of time prescribed by the Constitution. On June 14, 1921, the Governor filed the bill with his objections thereto in the office of the secretary of state.
The act was not printed in the volume of printed laws of the legislative session of 1921, but was printed in the volume of legislative acts of 1923 as chapter 9364, together with the objections made to it by the Governor.
Section 28 of article 3 of the Constitution is as follows:
As the Governor filed the bill, together with his objections, in the office of the secretary of state after the expiration of 10 days and not within 10 days, after the adjournment of the Legislature, the bill became a law several hours before his objections were filed, if the intervening Sundays are to be counted. Between the 3d of June, 1921, and the 14th day of that month, two Sundays intervened, viz., the 5th and 12th of June. If the two Sundays, the 5th and 12th, are eliminated from the count, then only 8 days and a few hours elapsed after the Legislature adjourned, before the Governor filed the bill with his objections in the office of the secretary of state.
Neither the 5th nor the 12th of June, 1921, occurred at the beginning or the end of the 10 days which elapsed after the Legislature of 1921 adjourned sine die.
Under the provisions of section 28 of article 3 of the Constitution, above quoted, a...
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...than if they were required to wait until after the argument of counsel to hear the law of the case from the judge.' Smithie v. State, 88 Fla. 70, 76, 101 So. 276, 278. This right is waived by a failure to take exception to the procedure adopted by the court. Defects in the instructions of t......
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... ... the conclusion of the evidence does not prescribe a hard and ... fast rule, a divergence from which constitutes of itself ... reversible error, but merely secures to the defendant a right ... which he may waive if he desires. Smithie v. State ... (Fla.) 101 So. 276 ... COUNSEL ... [103 So. 116] ... [89 ... Fla. 79] Edgar W. Waybright, of Jacksonville, for plaintiff ... in error ... Rivers ... Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for ... the State ... OPINION ... ...
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