JOHN JACKSON, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Jackson was convicted of sodomy under Florida law and challenged his conviction via writ of error. The Florida Supreme Court affirmed, rejecting both his challenge to the indictment and his claim of insufficient evidence, finding the bill of exceptions improperly filed and thus unavailable for review.
The demurrer was properly overruled under precedent (Ephriam v. State) establishing that section 5424 encompasses the alleged acts. The sufficiency of evidence claim could not be reviewed because the bill of exceptions was improperly filed after the extended time period expired and thus was not part of the record.
“The question presented is whether the crime defined by Section 5424, Rev. Gen. Stats. 1920, comprehends the act of copulation between two human beings per os.”
Frames the legal issue regarding whether the statute includes oral sodomy
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Join FLexlaw to unlock all legal intelligenceJackson was indicted by a Highlands County grand jury for the 'abominable and detestable crime against nature' under section 5424 of the Revised Gener…
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West, J.
By indictment of a grand jury of Highlands County plaintiff in error was charged with the “abominable and detestable crime against nature,” the offense denounced by section 5424, Revised General Statutes, 1920. He was tried upon this indictment and found guilty as charged. To review the judgment imposing sentence writ of error was taken from this court.
Two assignments of error are presented. The first presents the question of the propriety of the order overruling a demurrer to the indictment. The demurrer was properly overruled upon authority of Ephriam v. State, 82 Fla. 93, 89 South. Rep. 344. In the-opinion the court said: “The question presented is whether the crime defined by Section 5424, Rev. Gen. Stats. 1920, comprehends the act of copulation between two human beings per os. The statute above referred to is the only one upon the subject. It provides for punishment for the commission of the ‘abominable and detestable crime against nature.’ If the statute includes the act committed by the two defendants upon the person named SoWGary, there is no merit in the assignments of error, and the judgment should be affirmed.
“Other courts in the discharge of the duties devolving upon them have been compelled to consider the same question as is presented in this ease, and held that acts like those proven in this case constituted the “detestable crime against nature.’ ” • '
The holding that the acts alleged in the indictment in that case constituted the offense is decisive of this question.
•The second assignment challenges the ruling denying the motion-for a new trial. The point argued upon this assignment is the alleged insufficiency of the evidence to support the verdict. The verdict was returned on February 8, 1922, and sentence was imposed on the following .day. The paper copied into the transcript of the record purporting to be a bill of exceptions recites that the defendant, at the same term of the court, submitted his motion for a new trial; that this motion was overruled and denied on June 10, 1922, and sixty days allowed-to present bill of exceptions; that' on August 10, 1922, a motion was made by counsel for defendant to extend the time for presentation of a bill of exceptions; that this motion was granted and the time for presentation of the bill of exceptions extended to August 21, 1922, and that the bill of exceptions was presented on August 19, 1922, and signed by the trial judge.
' Except upon special order allowing further time, bills of exceptions must be made up and signed during the term of court at which the trial was had. Rule 97, Rules of Circuit Courts in Law Actions. And where the presiding judge has, during the term, under this rule granted further time for presentation of a bill of exceptions, he .is not authorized in vacation to make another order further extending the time. Myrick v. Meritt, 21 Fla. 799; Exporters of Mnfrs. Products v. Butterworth-Jedsea Co., 258 U. S. 365, 42 Sup. Ct. Rep. 331, 66 L. Ed. 1. The order, therefore, of August 10, purporting to allow additional time in which to present the bill of exceptions, was without authority, and the bill of exceptions having been presented to the trial court after the expiration of the further time allowed by the original special order can not be considered as part of the record. Bush v. State, 21 Fla. 569; Washington v. State, 48 Fla. 62, 37 South. Rep. 573; Bardwell v. State, 49 Fla. 1, 38 South. Rep. 511; Carter v. Stockton, 60 Fla. 33, 53 South. Rep. 450.
There being no bill of exceptions in the record, the question of the sufficiency of the evidence to support the verdict is not presented.
The judgment is affirmed.
Browne, C. J., and Taylor, Whitfield and Ellis, J. J., concur.
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Citator
Cited By (11 total)
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Alva Gene Franklin v. State, 257 So. 2d 21 (Fla. 1971)…274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927). . Delaney v. State, 190 So. 2d 578 (Fla.1966), appeal dismissed S87 U.S. 426, 87 S.Ct. 1710, 18 L.Ed.2d 866 (1967) ; Ephraim v. State, 82 Fla. 93, 89 So. 344 (1921) ; Jackson v. State, 84 Fla. 646, 94 So. 505 (1922) ; English v. State, 122 Fla. 77, 164 So. 848 (1935) ; Lason v. State, 152 Fla. 440, 12 So. 2d 305 (1943) ; Fine v. State, 153 Fla. 297, 14 So. 2d 408 (1943) ; and McElveen v. State, 72 So. 2d 785 (Fla.1954). . See Note 2, supra. . See Note…
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Davenport v. State, 94 Fla. 32 (Fla. 1927)…annot be considered by the appellate court. 2 R. C. L. 144; Bush v. State, 21 Fla. 569; Washington v. State, 48 Fla. 62, 37 So. 573; Bardwell v. State, 49 Fla. 1, 38 So. 511; Carter v. Stockton, 60 Fla. 33, 53 So. 450; Jackson v. State, 84 Fla. 646, 94 So. 505; Granquist v. State, 86 Fla. 32, 97 So. 205; Lanier v. Shayne, 85 Fla. 212, 95 So. 617; Preston v. The State, 86 Fla. 476, 98 So. 358. In the absence of some reasonable showing why the bill of exceptions was not presented to Judge Lane within the […
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Granquist v. State, 86 Fla. 32 (Fla. 1923)…s outside the Court’s power and is a nullity. The bill of exceptions having been presented and signed after the expiration of the time allowed for that purpose when [*34] the motion for a new trial was denied, cannot be considered. Jackson v. State, 84 Fla. 646, 94 South. Rep. 505. Even if the bill of exceptions 'had been duly authenticated and made a part of the record, the order of the trial Court denying the motion for a new trial, with the exception to the ruling, is not incorporated in it, so this rul…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Exporters of Mfrs'. Prods., Inc. v. Butterworth-Judson Co., 258 U.S. 365 (U.S. 1922)
- Ephraim v. State, 82 Fla. 93 (Fla. 1921)
- Myrick v. Merritt, 21 Fla. 799 (Fla. 1886)
- Bush v. State, 21 Fla. 569 (Fla. 1885)
- Emmett Washington v. State, 48 Fla. 62 (Fla. 1904)
- Shadrack Bardwell v. State, 49 Fla. 1 (Fla. 1905)
- Carter v. Stockton, 60 Fla. 33 (Fla. 1910)