J. E. BALLARD, PLAINTIFF IN ERROR,
v.
STATE OF FLORIDA, DEFENDANT IN ERROR
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Ballard was convicted of selling intoxicating liquor as a second offense. The Florida Supreme Court reversed because the State failed to properly introduce evidence of the prior conviction, as the record was offered but not clearly submitted to the jury or properly certified.
The judgment is reversed because the evidence of the former conviction was lacking. Although the original record was admissible and a certified copy would have been admissible, there was nothing to show that the record offered was actually submitted as evidence to the jury, nor was the uncertified copy shown to be a proper substitute for the original.
“There is, however, as pointed out, nothing to show that the record offered in evidence was actually submitted as evidence.”
The court identifies the critical deficiency—no proof that the offered docket page was actually presented to the jury.
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Join FLexlaw to unlock all legal intelligenceBallard was indicted for selling intoxicating liquor as a second offense. He had previously been convicted of a first offense on a plea of guilty in C…
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Ellis, C. J.
The plaintiff in error was indicted for selling intoxicating liquor as a second offense, that for the first offense he had been convicted on a plea of guilty in the County Judge’s Court. The verdict was “guilty as charged”. In a case of this kind such a verdict has been held to be sufficiently certain to sustain a judgment of the greater offense. See Benson v. State, 88 Fla. 103, 101 South. Rep. 231; Adkinson v. State — Fla. —, 103 South. Rep. 121.
As evidence of the former conviction the State produced as a witness W. A. McLeod, the County Judge, who produced “Criminal Docket M”. The State offered as evidence of the former conviction of the defendant the record of it as “found on page 490 of the Criminal Docket M of the County Judge’s Court”. The “entire page” was offered in evidence.
To the offer of the introduction in evidence of the County Julge’s original record of the defendant’s former conviction the defendant objected because it was irrelevant and immaterial, incompetent, and not in accordance with the method provided by statute for proof of such proceedings. The objection was overruled. The bill of exceptions does not show that the County Judge’s record, page 490 of the Criminal Docket “M”, was either filed in the case or read in evidence to the jury.
"When the-Court overruled the defendant’s objection to the evidence as offered the State Attorney merely asked the witness if any “appeal” had been taken from the judgment; whether it was in full force and if the defendant was the person convicted. To the first question the witness answered in the negative. The State then rested its case. No other showing was attempted to be made of the former conviction.
The trial judge certified that the bill of exceptions contained all the evidence at the trial. There is inserted in the bill of exceptions two pages which purport to contain a transcript of the County Judge’s Criminal Docket “M,” page 490. These pages, however, are not identified by any mark as indicating that they were used as evidence, nor do they contain any certificate of the County Judge that the contents is a true or correct transcript or copy of the contents of Criminal Docket M page 490.
The Court’s ruling refusing to sustain the defendant’s objection when the Criminal Docket itself'was offered constitutes the only assignment of error. There was no error in the ruling. While the original was admissible, a certified copy of the entire record of conviction was also admissible. Sec. 2718, Revised General Statutes 1920; Norwaad v. State, 80 Fla. 613, 86 South Rep. 506; 1 Greenleaf on Evidence, Secs. 483-484; Bell v. Kendrick, 25 Fla. 778, 6 South. Rep. 868.
There is, however, as pointed out, nothing to show that the record offered in evidence was actually submitted as evidence. Neither is there anything to show that the uncertified copy of the “Criminal Docket M page 490” of the County Judge’s Court was a substitute for the original.
The evidence was therefore lacking of a former conviction of the defendant; so the judgment is reversed.
Strum and Brown, J. J., concur. Whitfield, P. J., and Terrell and Buford, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Barnhill v. State, 41 So. 2d 329 (Fla. 1949)…the jury should be "not guilty", that, of course, would be the end of the matter and the defendant would be entitled to his discharge. It may be well, in closing to call attention to Adkison v. State 88 Fla. 359, 103 So. 121, and Ballard v. State, 93 Fla. 516, 112 So. 47. At first reading these decisions may appear to be in conflict with the views expressed in this opinion. A study of the Adkison case will reveal that the question of "prior conviction" was not properly an issue in that case; the defendan…
Authorities Cited
- Chas. W. Bell and Jerry B. Lockett v. Kendrick, 25 Fla. 778 (Fla. 1889)
- Benson v. State, 88 Fla. 103 (Fla. 1924)
- Columbus Norwood v. State, 80 Fla. 613 (Fla. 1920)