The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1884-12-16
AEAD-NOTES TO DECISIONS OF TIL
SURREME COURT OF FLORIDA.
June Term. A. ID. 1884.

Archibald w. Newton. Plaintiff in Error, vs.
the State OF Florida, Defendant in Error-Or-
ange county
VANVALKENBCRGH, j..
l. When al the assembling of Circuit Court,
no grand jurors shall have been summoned in
the manner provided by law, it is not error for
the Judge presiding to order the Clerk to issue
special venire commanding the Sheriff 10 sum-
mon the number ot qualified jurors so ordered
from The bystanders, or the body of the county
at large.
g. Section l, chapter 1925, Laws 1879. gives
10 the court no discretion in the matter OF issuing
u commission 10 take testimony. II the proof
on the part of the accused meets the require
ments of the statute, it is made the duty of the
Judge to order that commission be issued"
g. In order 10 avoid the necessity of the issu-
ing of commission to examine Witness under
such circumstances it is not sufficient for the
prosecutor to admit that if the witness was pres
ent or examined ON interrogatOrics, he would
testify to the material facts stated in the affidavit
ON which the motion is founded. The admis
sion must he of the absolute truth of the facts SO
stated, or the accused will be entitled TO his
commission, or continuance.
T. Before the commencement of the trial.
counsel Tor the accused moved the court for an
order that all articles in the possession of the
State, intended to be used in evidence, be placed
in the hands of the Clerk or other officer OF the
court for their inspection. The State Attorney
filed statement, by which it appears that all
such articles had been seen and examined by
counsel for defence and the experts in their be.
half and that they were fully acquainted with
such articles-and further agreeing that such
articles should be submitted To counsel tor de-
fence before they were SO offered in evidence.
No denial Of this statement was made by the
defence. Held, that in overruling the motion
there was no error.
s. The examination of the accused in a cr:mi-
nal case, taken before a Coroner and jury, where
such witness was not at the time under arrest
or charged with the crime, and where he wSs
instructed by the Coroner that he need not an
swer any question that would crimInate him in
any way, il proper evidence to go to the jury,
when such witness himself is subsequently, in
dcted and on trial for the offence.
g. The general rule in such cases is that what
IA party voluntarily says in relation to the offence
is admissible in evidence against him, whether
on oath or not. An affidavit made by him 10
procure a continuance OF the cause, or for Gem
mission to examine Witnesses is not excepted
from this rule.
7. The credit of witness may be impeached,
Nv proof that he has made statements out OF
court contrary to what he has testified at the
trial In laying the foundation for such i'm
peachment, it is necessary to inquire OF him as
10 the time, place and person involved in such
supposed contradiction. Then the proof Of the
contradictions may be submitted tn the jury.
"
proof; not by statements OF counsel or other
persons not under oath.
g. When counsel, upon the trial OF cause be-
fore Jury, abusing his privilege to the manifest
prejudice Of the other party, makes statements
with regard 10 evidence being adduced, not per-
tineut and therefore not within his privilege, 1t
becomes the duty of the Judge to stop him at
once. And if he fails to do SO, and the impro
priety is great, it is ground for new trial.
9. When improper and illegal evidence has
been introduced aud permitted to 60 to the jury
under exception, and not Withdrawn by the
counsel offering II. or the jury have not been in
structed BY the court TO disregard it entirely for
every purpose. and the Appellate Court Can see
| thai il may have had prejudicial influence up
| on the minds of the jury in making up their YER
| dict. this is ground for a new trial.
10. Remarks of counsel in the argument OF the
case outside Of the evidence, and the reasonable
| bounds of argument, having no relation 10 the
Cnilt or innocence of the accused and intended
10 excite the passions and influence the minds
| of the iury against the accused, should ce pro-
h;bited or stepped by the court in the exercise 0
a sound discretion; and when they are induiged
in by counsel, and not prohibited or stepped, II
| IA rood ground for new trial.
| II. 1t u improper for counsel to add, oy his
| own abatement fact, without the authority ol
! an cath or evidence 10 the testimony as submit.
ted 70 the Jury. A statement Of fact by counsel
noa authorized or proven by the evidence, should
| not be allowed TO 60 TO the jury.
IL. II q proper for ihs court 10 charge the jury
a. n the iistinctions made between direct and
circnmstsntisl evidence, especially In cas-
where such proof is In great measure circum
/ stnutiai. a.
1a Il h error for the court to charge. II Z
| homicidc or killing b proven, and no ground
defence set up or proven, - 70 the reason. o
c~ssse, ar motive, the law presumes that y wa
nrrmediiaied. unless proven 70 be accidental o
r-srtsrtionais Pfcineditasion b . question Q
iscs for ths jury % be determiued rpm the whol'
- Ths charge oF ~ conrt. pla!nly explains'
Il ete iurv. u dtG&1 6liona na1e ~ laM n a.
4 d1 e1 so9 - "a 49, .s : ~ n.