Citations
- 9 Fla. 516
Full opinion text
WALKER, J.,
delivered tlie opiiiioxi of the Court;
At the Eall Tetra 1860, of Escambia Circuit Court, thé plaintiff in error was tried, convicted and sentenced for the murder of William Wallace.
The assignment of error in this Ooul-t is, that “ it does not appear from the record proceedings of this case in the Court below, that the Judge filed the charge which he de=' livei-ed to the jtiryv’
This assignment would unquestionably he sufficient ground for reversal if supported by the record. The 8th section of “ An Act to provide writs of error in criminal cases,” ap= proved January 4, 1848, reads as follows :
“ Sec. 8. JBe it fwriher enacted, That charges made by Judges to juries in all criminal cases, shall he reduced to writing and filed ill the case, and shall he exclusively on points of law; and that any violation of this section shall he deemed and construed to be error from Which a writ of error may be prayed as of right.”
The language of this act is too plain for comment, and' in every criminal case where it shall appear that a Jttge has charged a jury either upon the law or facts, without rediu cing his charge to Writing and filing it in the case, we should hold it to be error.
But the difficulty in the way of reversal in this case is, that it does not appear that the Judge delivered any charge to the jury either upon the law or facts, written or unwritten. The only part of the record which speaks of a charge is, that part which says the prisoner was led into Court by the Sheriff, and then proceeds thus: “Whereupon came a jury, &c., who being duty chosen, tried and sworn, after hearing the evidence and argument of counsel and under the charge of the Court, retired to consult of their verdict,” &c. It is contended that the words “ and under the charge of the Court, retired,” &c., furnish evidence that the Court delivered a charge to them upon the law or facts of the case which ought, under the statute, to have been reduced to writing and filed. But after much reflection we have been unable to reach that conclusion. The record does not say that the jury after hearing the evidence and argument of counsel and the charge of the Court, retired,