Tillman v. State

Decision Date09 November 1909
Citation50 So. 675,58 Fla. 113
PartiesTILLMAN v. STATE.
CourtFlorida Supreme Court

Rehearing Denied Dec. 15, 1909.

Error to Criminal Court of Record, Duval County; J. S. Maxwell Judge.

G. H Tillman was convicted of bribery, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Assuming that the defendant in a prosecution against him for crime could by appropriate action in the trial court in the way of pleas, objections, or otherwise have raised the question as to the authority and jurisdiction of the judge of the criminal court of record for another county to preside over the court in the trial of such case, where such judge is acting under an order of the Governor, based upon section 3871 of the General Statutes of 1906, where no objections to the authority or jurisdiction of such judge were made in the trial court, and no action of any kind taken by the defendant toward raising such question, he will be deemed to have waived by his silence any such privilege or right he may have had, and will not be permitted to raise such question for the first time in the appellate court.

No error is made to appear in overruling a motion to quash certain counts in an information, based upon section 3476 of the General Statutes of 1906, charging the defendant with the crime of bribery of a judicial officer, when such information substantially complied with the requirements of such statute. Such information is not fatally defective when it distinctly alleges that the defendant offered the bribe to the judge of a designated court for the purpose of and in order to influence him 'to modify and reduce the sentence' imposed upon a certain named defendant on a prior day of the same term of court, because it does not affirmatively allege that the prosecution against such convicted defendant was still pending in such court at the time such bribe was offered.

The right of a defendant to make a motion for a new trial within the time provided by law is not forfeited by the fact that sentence had been pronounced upon the defendant prior to the making of such motion.

During the same term of court at which the sentence is imposed before the defendant had begun serving such sentence, the trial judge has the power to modify such sentence.

It is the declared policy of the Legislature, as well as of this court, to uphold indictments and informations whenever there has been a substantial compliance therein with the statutory requirements.

It is not sufficient merely to repeat an assignment of error and submit that error was committed by the trial court. Unless the error complained of is so glaring or patent that no argument is needed to demonstrate it, counsel must call the attention of the appellate court to the specific points upon which he relies to show error, otherwise such assignment will be treated as abandoned.

COUNSEL J. N. Stripling and T. W. Butler, for plaintiff in error.

Park Trammell, Atty. Gen., for the State.

OPINION

SHACKLEFORD J.

An information, based upon section 3476 of the General Statutes of 1906 of Florida, was filed against the plaintiff in error, upon which he was tried, convicted, and sentenced to confinement at hard labor in the state prison for a term of four years. A review of this judgment and sentence is sought here by writ of error. The information contained three counts, but only the last two are before us for consideration; the first having been quashed on motion of the defendant. In substance, the crime charged against the defendant was that during a term of the criminal court of record for Suwanee county, at which one Margarete Stanley had been tried and convicted of the unlawful sale of liquors, the defendant, 'then and there well knowing the official capacity of him the said H. E. Carter, and with the purpose and intent of fraudulently influencing the act, opinion, decision, and judgment of the said H. E. Carter, a judicial officer, and then and there the judge of said criminal court of record, on a certain matter and question, to wit, the matter and question of modifying and reducing the sentence theretofore imposed upon the said Margarete Stanley as aforesaid, and with the intent to fraudulently induce the said H. E. Carter in his official capacity as judge of said court to reconsider and modify and reduce the sentence and judgment theretofore imposed upon the said Margarete Stanley as aforesaid, he, the said G. H. Tillman, did then and there, on the said 16th day of February, 1909, aforesaid, corruptly offer to the said H. E. Carter as judge of said court as aforesaid, a gift and gratuity, to wit, a bank check of the value of $10, which said bank check was and is in the words and figures following, to wit:

"No ---.

Live Oak, Fla. 2/16 1909.

"The Citizens' Bank of Live Oak.

"Pay to the order of ----- Cash ----- $10.00 ----- Ten & 00/100 ----- Dollars.

"G. H. Tillman, Baker.'

--'contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Florida.'

The honorable H. E. Carter, judge of such court, filed with the clerk a suggestion of his disqualification in such cause under section 3871 of the General Statutes of Florida, reciting therein that he was a witness in such cause on behalf of the state. The clerk notified the Governor, in accordance with the provisions of such statute, who issued an order assigning the honorable John S. Maxwell, judge of the criminal court of record for Duval county, to try such cause. All of such proceedings affirmatively appear in the transcript.

The first two assignments are as follows:

'First Assignment of Error. It does not appear from the suggestion of disqualification filed by Hon. H. E. Carter, judge of the criminal court of record of Suwanee county, Florida, that he as judge of said court was disqualified from presiding at the trial of said cause.
'Second Assignment of Error. The honorable John S. Maxwell, judge of the criminal court of record of Duval county, Florida, was without jurisdiction to preside in said cause.'

Even if we assume that the defendant could by appropriate action in the trial court in the way of pleas, objections or otherwise have raised the question as to the authority and jurisdiction of Judge Maxwell to preside over the court in the trial of such cause, no such action was taken. Consequently we are not called upon to decide that question. See Coyle v. Commonwealth, 104 Pa. 117; Walcott v. Wells, 21 Nev. 47, 24 P. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478, and authorities therein cited; State v. Lewis, 107 N.C. 967, 12 S.E. 457, 13 S.E. 247, 11 L. R. A. 105; Orme v. Commonwealth, 21 Ky. Law Rep. 1412, 55 S.W. 195; Butler v. Phillips, 38 Colo. 378, 88 P. 480, 12 Am. & Eng. Ann. Cas. 204. The decided weight of authority is to the effect that, where no objection to the authority or jurisdiction of the judge is made in the trial court and no action of any kind taken by the defendant toward raising such question, he will be deemed to have waived such privilege or right by his silence, and will not be permitted to raise such question for the first time in the appellate court. See State v. Holmes, 12 Wash. 169, 40 P. 735, 41 P. 887; State v. Anone, 2 Nott & McC. (S. C.) 27; State v. Lowe, 21 W.Va. 782, 45 Am. Rep. 570; Schlungger v. State, 113 Ind. 295, 15 N.E. 269; People v. Mellon, 40 Cal. 648; State v. Gilmore, 110 Mo. 1, 19 S.W. 218; Roberts v. State, 126 Ala. 74, 28 So. 741, 30 So. 554; Slone v. Slone, 2 Metc. (Ky.) 339; Ripley v. Mutual Home & Savings Ass'n, 154 Ind. 155, 56 N.E. 89; Crawford v. Lawrence, 154 Ind. 288, 56 N.E. 673; Hunter v. Ferguson, 13 Kan. 462; Missouri Pac. Ry. Co. v. Preston, 63 Kan. 819, 66 P. 1050; Perry v. Pernet, 165 Ind. 67, 74 N.E. 609, 6 Am. & Eng. Ann. Cas. 533. Also see 23 Cyc. 616-618, and authorities cited in notes, and 11 Ency. of Pl. & Pr. 793. We see no occasion for any extended discussion of the matter or pointing out the...

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