WILL DAVIS, PLAINTIFF IN ERROR,
v.
STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court dismissed a writ of error for a defendant convicted of second-degree murder because the record was insufficient for review. The court emphasized the necessity of including motions and rulings in the bill of exceptions for appellate consideration.
The appellate court cannot consider an assignment of error based on the denial of a motion for a new trial if it is not included in the bill of exceptions. A general exception to the refusal of multiple distinct charges is insufficient if any one of the refused charges was properly refused.
“A motion for a new trial is not a part of the record proper, but must be embodied in the bill of, exceptions, together with the ruling thereon and the exceptions to such ruling, in order to present to the appellate court for consideration an assignment of error based upon the denial of such motion.”
Explains the procedural requirement for appellate review of a motion for a new trial.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff in error was convicted of murder in the second degree. The defendant's motion for a new trial was denied, and five special charges were …
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Brown, C. J.
— The plaintiff in error was convicted of murder in the second degree and the case is brought here upon writ of error. The assignment of error based upon, the denial of motion for new trial cannot be considered, as such motion for new trial was not embraced in the bill of exceptions. A motion for a new trial is not a part of the record proper, but must be embodied in the bill of, exceptions, together with the ruling thereon and the exceptions to such ruling, in order to present to the appellate court for consideration an assignment of error based upon the denial of such motion.
Five special charges were requested by the defendant and refused by the trial court, one general exception being taken to the refusal to give all five of such requested charges. Some, if not all of these charges, were properly refused. The rule is well settled that a general exception to the refusal to give two or more requested instructions asserting separate and distinct propositions of law, will be overruled if it appears that any one of such instructions was properly refused.
We do not find any merit in the remaining assignments of error. Aside from all this, the judgment sought to be reviewed is not made to properly appear in the record.
The Writ of Error is therefore dismissed.
Ellis and Strum, J. J., concur. Whitfield, P. J., and Terrell and Buford, J. J., concur in the Opinion.
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Vassar v. State ex rel. Willie M. Gleason, 139 Fla. 213 (Fla. 1939)…Line R. Co. v. Anderson, 73 Fla. 1, 73 Sou. 837; Seaboard Air Line R. Co. v. Minor, 82 Fla. 492, 90 So. 611; Fla. E. Coast R. Co. v. Peters, 77 Fla. 411, 83 Sou. 559; Grenblatt v. J. R. Bissell Dry Goods Co., 85 Fla. 83, 95 Sou. 302; Davis v. State, 91 Fla. 512, 107 Sou. 632, which will be bound in point. In the case of Manatee County State Bank v. Wade, et al., 56 Fla. 492, 47 Sou. 927, it was held: “In order for the appellate court upon writ of error to [*217] review the sufficiency of the evidence to…