The Palatka daily news. (Palatka, Fla.) 1884-1888, 1885-12-01

1OrelSn executor with authority 10 Q6-
fend a suit in her courts, nor can such
authority be given by consent of parties
that he shall become party defendant
to a suit pending and an order therein
making such party.
2. Where a defect of necessary parties
which existed prior to the decree APP
pealed from, is discovered on appeal, the
decree may be reversed, and the cause
remanded with leave to make parties,
and for further proceedings.
Decree reversed.
A. w. Cockrell & Son, for Appellants;
G. P. g. J. G. Cooper, for Appellees.
George Andrews, Plaintiff in Error, VS.
The State of Florida, Defendant in En-
ror-Escambia county.
RANEY, j.:
/. The state moved for a continuance
of the trial upon an Indictment for muir
der, supporting the motion by written
statement of the state attorney of what
tie absent witness would testify if pres
ent. The prisoner objected to the con-
tinuance on the ground that The witness
bad never been before the grand
jury, and that the Indictment was
found without his testimony. The
circuit Judge ruled that the con-
tinuance should be granted unless
the prisoner should waive the presence
OF The witness and agree that il present
he would testify to the facts set out in
the statement. The prisoner excepted to
| the ruling, but thereupOn agreed in writ
ing to waive the presence Of the witness,
aad to admit that the witness would, if
present, testify to the facts sta, ed. The
bill OF eEceD ;ons purpo"ts to give all the
| testimony used on the tti&i before the
| jury which was afterwards impanuell9d,
| but neither it nor The record shows that
such statement or agreement, or the tes-
timOpy of TIE witness, was used on such
tr.al. Held: There IS nothing to show
that the ruling had any eject upon the
verdict, and it will not be reviewed in
the supreme court on motion for new
ttial.
2. A yenireman stated on his 'voir
dire that be had fo:ned an opinion as
to the guilt or ipnocence Of the accrsed,
who YVES charged with murder, and that
it was not formed from hearing or con-
versipg with tie witnesses 10 the case;
would give a verdict according to the ev-
iderce; 'sthat it would take a reasonable
amount of evidence -thet iC would tale
conclusive evidence to change his mind. =
The circuit juds e ruled that he was a
competent jrro'. Held: To be error and
that he was rot competent.
8. A ve0ireman seated on bis 'voir
die that b=s opinion was fOcmed from
rumor; that be bad never conversed with
the WI ne 5ses, and bis opinion would
yield readily to evidence, bat he would
rather not have head what he had
if he was to go in the jury box.
The circuit judge rolled that he was q
competent juror. He'd: Not to be err
roo.
Z. Whether, where ye0ireman is e..
roneously ruled TO be competent as jul
ro,, Notwithstanding his opinions are OF
sLch characte: as in law disqJalify him
to sit on the jury, and heis afterward
challenged peremptor;ly by the prisoner,
and the reco d does not show that his
pefemptorv challenges were exhausted
before a full ju'y was sworn, it is ma
terial error for which a new trial will be
g.anted. Quere?
5. Where pat of cba-ge to the
ju,y is excepted to, the whole charge
should be considered, and IL the charge
considered as whole IS fee from the OBJ,
lection urged. the exception should be
ovei .u'ed.
6. The circuit judge charged the jury
that manslaugh-er in the second and
fourth degrees only, was to be consider.
ed by them ''for the reason shat under
the admission OF The prisoner that he did
the killing with the design to protect
himself, the Others are pat out of con
sideration." Held: To be error, as nc
such admission appea- IS in the record.
! Z. 1t Is error to lnS.iuct the jury that
the statement of tie pt soner of his de
fence under the statute is to be received
with caution because Of the position be
occupies. The statute gives the right tc
make this statement qualified by sucf
commcne or caution from the Judge.
s. The doctrine Of reasonable doubt
does not apply to proof of venue. 1T the
evidence raises a violent prescription
that the offence was committed in the
county alleged, or it may be reasonably
inferred from the evidence, it is suffici
ent
Judgement reversed and new trial
granted.
VIM. 4. Blount and j. E. Yonge fol-
Plaintiff in Error; Acknowledgement fol
Defendant in Error.