Timmons v. State

• Decision Date: 18 January 1929
• Citation: 97 Fla. 23,119 So. 393
• Parties: TIMMONS v. STATE.
• Court: Florida Supreme Court

119 So. 393

97 Fla. 23

TIMMONS v. STATE.

Florida Supreme Court, Division A.

January 18, 1929

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Paul Timmons was convicted for unlawful possession of liquor second offense, and he brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Failure of transcript to show arraignment and plea was not ground for reversal, where plaintiff in error failed to request clerk to copy them into transcript (Special Rule 3). Where plaintiff in error, in having transcript prepared under special rule 3 failed in his written directions to the clerk to request the copying into the transcript of the arraignment and plea, and it not being made affirmatively to appear that there had been no arraignment and plea, the failure of the transcript to show arraignment and plea is not ground for reversal.

Plaintiff in error and attorney had duty of bringing correct and truthful transcript of record to appellate court to show error. The plaintiff in error and his attorney are charged with the duty of bringing to the appellate court a correct and truthful transcript of the record in the trial court, and making it thereby appear that the error, for the commission of which asks that the verdict and judgment of the trial court be reversed, was committed by such court.

Evidence not expressly locating crime as committed in county charged but sufficiently referring to localities is sufficient proof of venue. The rule is that where the evidence does not expressly locate the crime as having been committed in the county charged in the indictment, but there are sufficient references to localities to identify it, it is sufficient proof of the venue.

Allegation of previous conviction for possession of liquor is not supported by proof merely showing imposition of sentence after plea of guilty (Comp. Gen. Laws 1927, § 7630). Where an indictment, under section 5486, Rev. Gen. Stats., section 7630 of Comp. Gen. Laws of 1927, charges the accused with having been in unlawful possession of intoxicating liquors and alleges his previous conviction for the same offense, the latter allegation is not supported by proof of an alleged judgment which merely shows the imposition of a sentence after a plea of guilty, but which contains no adjudication whatever by the court of the defendant's guilt.

COUNSEL

W. E. Smith, of Ocala, for plaintiff in error.

Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BROWN J.

Plaintiff in error was tried and convicted in the circuit court of Marion county upon an indictment wherein it was charged that on a certain date and in said county he did unlawfully have in his possession, custody, and control certain intoxicating liquors, and that he had previously been convicted of the same offense.

Motion to quash the indictment was filed and denied. While the record does not show that the defendant was arraigned or that he pleaded to the indictment, there is no assignment of error raising this point. There is no affirmative showing made by plaintiff in error, in the transcript of the record which he has brought before us under special rule 3, that these things were not done. While it is not the purpose of a bill of exceptions to supply omissions of matters which should be shown by the record proper, the judge's general charge as contained in the bill of exceptions shows that the defendant had pleaded not guilty. And the recital in the record proper that the jury were sworn to try the case 'upon the issues joined' indicates the same thing. The record shows that the defendant was present during the proceedings and when the verdict was returned and judgment and sentence imposed.

The directions to the clerk did not request the insertion in the transcript of the arraignment or plea, through the other proceedings and papers embraced in the transcript are specifically mentioned. The certificate of the clerk is that the transcript, which was evidently prepared under special rule 3, contains a correct transcript of the record of the judgment in the case, 'and a true and correct recital and copy of all such papers and proceedings in said cause as appears upon the records and files of my office that have been directed to be included in said transcript by the written demands of the said parties.' So the arraignment and plea may have been shown by the record in the court below, and plaintiff in error overlooked directing the inclusion of same in the record. If such was the case, would this court be warranted in reversing the judgment on account of the negligent omission of the plaintiff in error? This shows the wisdom of the rule heretofore announced by this court that the plaintiff in error and his attorney are charged with the duty of bringing to the appellate court a correct and truthful transcript of the record in the trial court, and making it thereby to appear that the error, for the commission of which he asks that the verdict and judgment of the trial court be reversed, we committed by such court. Lovett v. State, 29 Fla. 384, text 403, 11 So. 176, text 180, 16 L. R. A. 313; O'Steen v. State, 92 Fla. 1062, 111 So. 725.

The contention that the evidence in the record does not expressly show...