JOHN MITCHELL, PLAINTIFF IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

Shackleford, J.

. The plaintiff .in ..error, hereinafter.referred, toms..the,def • fendant,. at the. Spring term,. 1901, of the. Circuit .Conrit-or:' Washington county, was indicted for murder,,.in, the,- first-degree, and was tried, convicted, :of, murder in... the.,, third;' degree and sentenced..at.the,Bpriflg term,,.; -1903,-mf said, court, -and seeks, a.reversah.by, writ of terror..»' r. ,

But two ..errors-are .assigned, the; first, of,, which is that,, the court erred in. overruling defendants-, ¡ipotion form; new trial upon the grounds therein, stated, Ayhich -were tq the effect that the verdict, was-contrary to the evidence,- against the .weight , of .the... evidence-and unsupported», thereby, and that. the, motion .for-a,, special venire and • tlie order of the, .court grantting same.-were made in the absence of the defendant from the court room.. - Other grounds were contained in said motion for-a new trial, but they are not argued here, and, therefore, must be eosidered as abandoned. . ...

The court has carefully considered all the evidence and finds that there is ample testimony to prove the corpus delicti; that is, that the deceased, Frank Johnson, came to his death by the criminal agency of another. The dead body was found shortly after death had ensued, for it was still warm, and the proof shows that, deceased came* to his death from a pistol-shot wound inflicted by another.

The testimony further shows that on the night the deceased came to his death, within a very short time after certain shots had been heard in the vicinity of where the deceased had been shown to be on the night in question, the defendant came up with a rifle to the house of William Edwards and made a statement of his own volition to the effect that he had killed the deceased, Frank Johnson, and that the gun he had with him was the rifle of deceased which he, the defendant, had taken from deceased after hé was shot down. Two witnesses testified to this confession by the defendant and the testimony of said witnesses was not contradicted.

The jury evidently believed that thé defendant made said confession, and that it was true. They have acted upon it by finding that the defendant was guilty of murder in the third degree, and the verdict has been approved by the Circuit Judge. We approve the dotriné laid down in Brown v. State, 44 Fla. , 32 South. Rep. 107, to the effect that “a conviction for murder, may be had upon the voluntary extra-judicial confession of the accused that he com mitted the crime, where thé co-rpus delicti is proven by other credible evidence, and the jury believe that such confession was made by the accused, and that it is true.” Also see Gantling v. State, 41 Fla. 587, 26 South. Rep.

737. There is nothing whatever before us to show that the jury were improperly influenced by considerations outside the evidénce; indeed, it is not so contended here, and, following the long established rule of this court, we must refuse to disturb the verdict o'f the jury. Browning v. State, 41 Fla. 271, 26 South. Rep. 639, and authorities there cited.

In considering the grounds of said motion to the effect that the defendant was absent from the court room at the time that the motion and order for the special venire were made, it is sufficient to say that it appears from the bill of exceptions that the trial judge, at the time of passing upon the said motion' for a new trial, stated that he knew of his own personal knowledge that the defendant was personally present in court when the said motion was made and granted, and thereupon directed the clerk to make the minutes so show. It was perfectly competent and proper for said judge to order the clerk to correct the minutes so as to make them speak the truth. Ammons v. State, 9 Fla. 530; Brown v. State, 29 Fla. 494, 11 South. Rep. 181; Olive v. State, 34 Fla. 203, 15 South. Rep. 925; Rodriquez v. State, 32 Tex. Crim. App. 259, 22 S.

W. Rep. 978; Kaufman v. Shain, 111 Cal. 16, 43 Pac. Rep. 393, S. C. 52 Am. St. Rep. 139, 16 Ency. Pl. & Pr., 29. This action of the trial judge is conclusive and binding. It therefore follows that no error was committed in the overruling of the motion for a new trial. This makes it unnecessary for us to determine what the effect would have been had the defendant been absent from the court room at the time the motion and order for the special venire were made. Lane v. State, 44 Fla. , 32 South. Rep. 896.

We are of the opinion that the verdict is sustained by the evidence, and, finding no error in the record, the judgment of the court below is affirmed.