Thomas v. State
| Decision Date | 08 June 1896 |
| Parties | THOMAS v. STATE ex rel. ROBERTS. |
| Court | Florida Supreme Court |
Appeal from circuit court, Hillsborough county; G. A. Hanson, Judge.
Proceeding by the state, on the relation of Martha Roberts, against Franklin C. Thomas. From a judgment for relatrix, defendant appeals. Affirmed.
Syllabus by the Court
1. One of the grounds of motion for new trial is error alleged in a charge of the court to the jury. The transcript of the record does not show what charges, if any, were given to the jury and it does not otherwise appear than by the recitation in the motion for a new trial that the court gave the jury the charge complained of. Therefore the alleged erroneous matter not appearing affirmatively of record, cannot be reviewed by this court.
2. A complainant in a bastardy proceeding which alleges that the complainant 'is a single woman, and is now pregnant with child, within the said Sixth justice district of the county of Hillsborough, in the state of Florida, which said child when born, will in law be deemed and held to be a bastard,' and that 'the defendant [naming him], of the said county of Hillsborough and state of Florida, is the father of said child,' is sufficient. Such complaint is not required to state that the complainant was not a married woman at the time of conception of the child. The averment 'which said child, when born, will in law be deemed and held to be a bastard,' when connected with the other allegations of the complaint, cannot be held to be only an allegation of a conclusion of law.
Barron Phillips, for appellant.
Judgment against the appellant was entered in the circuit court in a proceeding against him for bastardy. Omitting formal commencement and jurat, the complaint against him reads as follows: 'Martha Roberts, being first duly sworn, deposes and says that she is a single woman, and is now pregnant with child, within the said Sixth justice district of the county of Hillsborough, in the state of Florida, which said child when born, will in law be deemed and held to be a bastard, and that Franklin C. Thomas, of the said county of Hillsborough and state of Florida, is the father of said child.' There is no bill of exceptions, and none of the proceedings at the trial appear in the transcript of the record. A motion for new trial was made upon various grounds. The complainant's attorney moved to strike the motion for a new trial from the files upon various grounds,--among others, that such motion alleges matters and things which are untrue, and which did not happen during the trial of the cause. The court granted the motion to strike, and struck the motion for a new trial from the files. The counsel for appellant makes no argument as to any error in practice in this disposition of the motion for a new trial, instead of overruling it. He only asks that 'this court will treat said action of the court as if it had not been taken, and give the defendant the benefit of his motion, the same as if it had been overruled.' Disposing of the case in accordance with this view of counsel, we examine the merits of the motion for a new trial. The only ground of such motion which is argued here is the sixth. This ground is predicated upon an alleged erroneous charge of the court to the jury. The record does not show what charges or instructions were given to the jury, and it does not otherwise appear than by recitation in the motion for a new trial that the court gave the jury the charge complained of. 'Where proceedings of the court alleged to be erroneous do not affirmatively appear of record, but only by way of recital, in a motion of counsel which was denied, this court will not assume that such proceedings were actually had, and will not review a fact so recited.' McNealy v. State, 17 Fla. 198; Bryant v. State, 34 Fla. 291, 16 So. 177.
The defendant moved the court to arrest the judgment for the following alleged defects in the complaint: (1) That it was not in accordance with the statute; (2) that the allegation 'which said child, when born, will...
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Thalheim v. State
...We have often determined that we cannot take notice of any fact which only appears in the record as a recital in a motion. Thomas v. State, 37 Fla. 378, 20 So. 529. fifth assignment of error refers to the admission in evidence of a contract of sale of phosphate by the Land Pebble Phosphate ......
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Weightnovel v. State
... ... or existence of an asserted fact than its assertion as a fact ... in a motion for new trial, it cannot be considered by an ... appellate court ... COUNSEL ... [35 So. 857] ... [46 ... Fla. 3] M. Henry Cohen and Thomas Palmer, for plaintiff in ... J. B ... Whitfield, Atty. Gen., for the State ... OPINION ... TAYLOR, ... The ... plaintiff in error was tried, convicted, and sentenced in the ... criminal court of record for Hillsborough county in January, ... 1903, ... ...
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Browne v. State
... ... of error are based solely upon recitals in the motion for new ... trial. The motion was denied by the trial court. Therefore ... the alleged erroneous matter, not appearing affirmatively of ... record, cannot be reviewed by this court. Thomas v. State ... ex rel. Roberts, 37 Fla. 378, 20 So. 529; Thalheim ... v. State, 38 Fla. 169, 20 So. 938 ... The ... fifth and sixth assignments of error allege the overruling of ... defendant's objection to the introduction in evidence of ... a pistol, and also clothes of the ... ...