The Weekly Tallahasseean. (Tallahassee, Fla.) 18??-1905, 1901-12-20


ing declaration OF the deceased in eVi.
dence it should first be shown to the
satisfaction of the court that at the
time the declaration was made the de-
ceased not only considered himself in
imminent Danger of death, but must be
without hope OF recovery, ana the cir
cumstances under which the statement
was made should be shown in order
that the court may determine whether
Inc statement should go to the jury as
dying declaration.
Judgment reversed.
Nat K. Walker for plaintiff in error:
William B. Lamar, encouragement,
for the State.
Joe Caldwell, plaintiff in error, VS..
the State of Florida, defendant in error;
Suwannee county. Mabry, j.:
1. A motion in arrest Of judgment on
the ground of the insuficiency of the
indictment must be exhibited to tle
appellate court by the record proper,
anu not by bill Of exceptions.
2. The courts take judicial knOWl-
edge, as it is a matter of common
knowledge, that wine is intoxicating.
). The act of 1899, Chapter 4746, pro-
hiDiting the sale of spirituouS, vinOus
or malt liquors in localities where the
local option provision of the cOnStitu-
ton has been put in operation, con-
templates that such liquors shall be in
tOXicating, and where an indictment
charges an unlawful sale of wine the
court may instruct the jury as matter
of law that wine is intoxicating, and
as a consequence no harm can come to
the accused by permitting witness to
state that the wine sold was intOXicat-
ing.
4. Under an Indictment charging an
unlawful sale OF wine under Chapter
4746, acts of 1899, it is competent to
prove the sale by showing that pre-
tended sale of a different article was
a subterfuge and sham for the sale of
the wine.
5. When a demurrer to evidence
makes. no offer to reduce the evidence
to a statement on the record of the
facts proven or tended to be proven,
the court may disregard the demurrer
entirely; but if the court overrules
such demurrer and the only evil
Oence exhibited to the appellate court
is that found in regular bill of ex-
ceptions and it is sufficient to sustain
the verdict rendered in the case, the de-
mnrrant has no ground Of complaint
Judgment affirmed.
Blackwell & Johnson, for plaintiff in
error; William B. Lamar, attOrney-gen-
eral, for the State.
Walter A. SigSbee, plaintiff in error,
VS.. the State of Florida, defendant in
error; Alachua county. Mabry, J.:
1. The amendment of section 2463
Revised Statutes, by Chapter 453O,
laws of 1885, did not deprive the State
under Article III, section 80, constitu-
ton of 1885, of the right to prosecute
for offences committed against the Sec
ton as it originally existed before
amendment, though the indictment
should not be found until thereafter.
2. A motion to quash an indictment
consisting of more than one count
should be denied if either count be
good.
8. A count in an indictment found IN
der section 2463 Revised Statutes, be-
fore it's amendment in 1897, Chapter
1880, alleged that the accused on a
specified date, in a named county in
this State, being an officer OF the city
of Gainesville, a municipal corporation
under the laws of Florida, to-wit:
clerk and city treasurer, whose duty
then and there required him to re-
ceiVe public money belonging to said
city, did by virtue of his said Office as
clerk and treasurer and while acting as
such, receive and take into his posses
sion certain moneys, the property OF
the said city of Gainesville, at divers
times between July 7th, 1896, and April
21st, 1897, tO-Wit: the sum of two thou
sand two hundred twenty-slx dollars
and fourteen cents a more particular
description of which is to the grand
Jurors unknown, for and in the name
and on account of the city of Gaines
vile aforesaid, and the said money sc
as aforesaid coming into his possession
by virtue of his said Office as clerk
and treasurer, he then and there, or
the twenty-first day of April, 1897, and
in said county, fraudulently and will.
fully withheld, to-wit: the sum of ST..
226.14, a more particular description Is
to the grand jury unknown, so as tC
prove defaulter to the city of Gaines
vile aforesaid, against the peace and
dignity of the State of Florida, and
contrary to the statute in such cases
made and provided. Held, that the