Taylor v. State

• Decision Date: 05 January 1925
• Citation: 102 So. 884,88 Fla. 555
• Parties: TAYLOR et al. v. STATE.
• Court: Florida Supreme Court

102 So. 884

88 Fla. 555

TAYLOR et al. v. STATE.

Florida Supreme Court, Division B.

January 5, 1925

Error to Circuit Court, Suwannee County; M. F. Howe, Judge.

Mal Taylor and Nathan C. Johnson were convicted of murder in the first degree, and they bring error.

Affirmed.

Syllabus by the Court

SYLLABUS

Verdict part of record proper, and defect should be determined on motion in arrest of judgment. The verdict is a part of the record proper, and alleged defects in the form of the verdict should be determined in the trial court upon motion in arrest of judgment.

Codefendant obtaining affirmative charge may be allowed to testify. Several defendants, jointly indicted, were put upon trial. At the conclusion of the evidence a motion, on behalf of one of them, for an affirmative charge was granted, whereupon he was called as a witness and testified on behalf of the state over the objections of the other defendants on trial on the ground that he had been present in the courtroom, and heard the evidence of the other witnesses. Held: that allowing him to testify as a witness was in the sound discretion of the trial court, and not error.

Recitals in motion for new trial not proof of facts stated. Recitals in a motion for new trial are not evidence or proof of the truth of the facts stated or asserted in such motion.

Verdict of guilty of murder sustained. Evidence examined, and found sufficient to sustain the verdict.

COUNSEL

A. Lee Humphreys, of Live Oak, and W. H. Wilson, of Lake City, for plaintiff in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

WEST J.

Plaintiffs in error Mal Taylor and Nathan C. Johnson were indicted jointly with Henry Blackman and Henry Winney upon a charge of murder. There was a severance as to Henry Blackman. Plaintiffs in error and Henry Winney were put upon trial. At the conclusion of the testimony there was a motion on behalf of defendant Henry Winney for an affirmative charge, which was given. Thereupon the state attorney asked permission to withdraw the announcement that the state rested, which was granted. The defendant Henry Winney was then called as a witness for the state. The verdict found 'the defendants' guilty of murder in the first degree and recommended mercy, There was a motion for new trial as to Winney, which was granted, and the case against him nol prossed. To review the judgment, writ of error was taken from this court.

It is contended that the verdict is defective in form, in that neither the court nor the venue is stated. The record recites that the jury returned into court and rendered 'the following verdict,' copying it. The verdict is in the usual form, finding the defendants guilty of murder in the first degree with recommendation to mercy, and is signed by the foreman. Generally, a verdict in a criminal case is the finding by a jury upon issues of fact submitted to them. It is a part of the record proper. The court and venue are things with which the jury have nothing to do. So that, if a recital of the court and venue in the verdict was consistent with the record, it would be of no value, and, if inconsistent, would ordinarily be disregarded as surplusage. Furthermore, 'the true rule is that, when a verdict is upon its face so defective as a matter of record that judgment cannot legally be entered thereon, then a motion in arrest of judgment is the proper way to assail it.' Harris v. State, 53 Fla. 37, 43 So. 311; Edwards v. State, 54 Fla. 40, 45 So. 21. The question was not presented by motion in arrest of judgment.

It is contended that there was error in the ruling permitting the defendant Henry Winney to testify as a witness on behalf of the state, on the ground that he had been present in the courtroom, and heard the evidence of all the other witnesses. Being one of the accused on trial, it was necessary that he be present. The matter of allowing him to testify was in the discretion of the court. Hughes v. State, 61 Fla 32, 55 So. 463; Hoskins v. State, 70 Fla. 186, 69 So. 701.

The record recites that during the progress...