Hodge v. State

Citations

• 29 Fla. 500

Syllabus

<p>1. The oath or affidavits required by the act of March 11th, 1879 (sec. 41, p. 466, McClellan’s Digest), to satisfy the court that the testimony of a witness whose deposition it is desired to take under a commission is material and necessary to the defense of the accused, must present facts naturally and reasonably calculated to satisfy the judgment of the court that -such testimony is material and necessary to the defense. An affidavit of counsel stating that he is acquainted with the case of the defendant, and what is necessary for his defense, and verily believes that the testimony of a named witness, to whom interrogatories calling for his opinion as an expert and accompanying the motion for a commission are addressed, “ is necessary, material and important to the defendant,” is not sufficient,</p> <p>2. A plea of not guilty is a waiver of the right to plead in abatement in a criminal cause.</p> <p>3. If there can ever be a review by an appellate court of a ruling of a trial court refusing to permit the withdrawal of the general issue for the purpose of pleading in abatement of the indictment, it will not be done where the accused has waited twenty-one months after the finding of the indictment, and there has already been a trial on the merits, and the period barring a new indictment has elapsed.</p> <p>4. A charge to a jury cannot be made a part of the record except by a bill of exceptions, or by being signed, sealed and filed by the circuit judge, in accordance with the act of March 2d, 1887 (sec. 36, p. 338. McClellan’s Digest), and will not be reviewed by the appellate court when not made a part of the record.</p> <p>5. A verdict may be received and entered On Sunday, but it seems that judgment or sentence cannot be lawfully rendered on that day. The former proceeding is not ground for a new trial.</p> <p>. 6. The failure of the record to show that the judge asked á prisoner before pronouncing sentence upon him, if he had anything to say why the sentence