Warrace v. State
| Decision Date | 04 March 1891 |
| Citation | 27 Fla. 362,8 So. 748 |
| Parties | WARRACE et al. v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Wakulla county; DAVID S. WALKER, Judge.
Syllabus by the Court
1. In an indictment for an offense not punishable with death it is material to allege that it was committed within two years from the finding of the indictment, and this allegation must be established by proof on the trial.
2. Venue need not be established beyond a reasonable doubt. If the evidence raises a violent presumption that the offense was committed within the county, or if the evidence refers to localities and landmarks at or near the scene of the alleged offense, known or probably familiar to the jury, from which they may reasonably infer that the offense was committed in the county, it will be sufficient.
3. In cases of felony, where the record fails to show that the accused was arraigned, or personally pleaded to the indictment, or was personally present in court during the trial, it is fatally defective.
COUNSEL N. R. Walker, for plaintiffs in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiffs in error, together with Prince Robinson, John Johnson, and Joe Clemens, were indicted at the fall term 1890, of the circuit court of Wakulla county, for an assault with intent to murder one J. B. Hopkins. Robinson and Johnson not being in custody, and a nolle prosequi having been entered as to Clemens, the other defendants below, plaintiffs in error here, were tried in the circuit court for Wakulla county on the 29th day of October, 1890, and convicted of the charge preferred against them.
Said defendants, by their attorney, moved the court below to grant them a new trial upon the following grounds: 'The verdict is contrary to law, contrary to the evidence and contrary to the charge of the court.' This motion was overruled by the court, and defendant Dave Warrance sentenced to the state penitentiary for two years, and defendant John Warrace sentenced for seven years to which decision of the court said defendants excepted. During the same term, and in open court, said defendants below entered an appeal from the judgment of the said circuit court to this court, and assign herein the following errors: 'The court erred in overruling the defendants' motion for a new trial upon the grounds set forth in said motion, to-wit: that the verdict of the jury was contrary to law and the evidence and contrary to the charge of the court.' The only charge given the jury by the court was the following: 'If you find from the evidence that the defendants, with deadly weapons, assaulted Mr. Hopkins, with a premeditated design to effect his death, you should find them guilty; but if, from the evidence, there should be reasonable doubt upon your minds as to any of these points, you should find them not guilty.'
The evidence introduced on the trial of this case is embodied in a bill of exceptions constituting a part of the record here and a careful examination of this evidence satisfies us that the judgment of the circuit court cannot be sustained. That the defendants committed the offense with which they are charged within two years from the finding of the indictment, and within the county...
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...of the commission of an offense. Alexander v. State, 40 Fla. 213, 23 So. 536; Weinert v. State, 35 Fla. 229, 17 So. 570; Warrace v. State, 27 Fla. 362, 8 So. 748; Chandler v. State, 25 Fla. 728, 6 So. 768; Straughter v. State, 83 Fla. 683, 92 So. 569; Thorp v. Smith, 64 Fla. 154, 59 So. 193......
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...appeal), the appropriate remedy is a new trial, not discharge. See Weinert v. State , 35 Fla. 229, 17 So. 570 (1895) : Warrace v. State , 27 Fla. 362, 8 So. 748 (1891) ; McCoy v. State , 17 Fla. 193 (Fla. 1879). It would be difficult to reconcile how a defendant under those circumstances wo......
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Lowman v. State
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