Reed, Story and Samuel Sullivan, Plaintiffs in Error, vs. The State of Florida, Defendant in Error, 16 Fla. 564

Mb. Justice Yan Yalkenbubgh delivered the opinion of. the court. These defendants were tried upon an indictment found, for fraudulently altering the marks of an. animal, under

Section 54,

Chapter 4, of “

An act to provide for the punishment of crime and proceedings in criminal cases,” approved August 6th, 1868. The first error assigned by the plaintiffs in error is, that there was no arraignment by the court of these defendants-before trial as contemplated by the law. The record presented to this court upon this point is as follows: “Now on this day comes Alexander St. Clair Abrams,, who prosecutes the pleas of the State of Florida in this behalf, and J. W. Price and J. H.

Allen, counsel for defendants, and the defendants being brought into court and arraigned pleaded not guilty, and thereupon comes a jury of good and lawful men, to wit: 1. W. A. Lovell; 2.. Newton Ennice; 3. W. R. Barnhart; 4. M. Gr. Campbell.; 5. M. J. Doyle; 6.

John Ivey, who, being empanelled and sworn to try the issue between the State of Florida and the defendants according to the evidence, after hearing the evidence and the argument of the counsel, and having, received the charge of the court, rendered the following verdict, to wit: ‘ We the jury find the prisoners guilty.’ ” There is sufficient in this record to identify the prisoners, to show that they were brought into court; that they were represented by counsel, plead to the indictment,.were tried by a jury and found guilty of the offences with which they were charged.

The very question raised by this assignment of error has been fully considered and determined in this court in the case of Dixon vs. The State, 13 Fla,, 631.

The counsel for the defenants, after verdict, moved for new trial upon several grounds;, the first, being. “that.th®said defendants were illegally tried, having, been-tried andi -convicted by six persons empanelled'as a jury, which was illegal and contrary to the constitutional rights of the defendants.” This ground of error having been disposed of by this court in the case of Gibson vs. the State at the last term, -was waived upon the argument of the case in this ■court.

The other assigned grounds'of error made and argued upon such motion for new trial, all related to the charge of the court to the jury, save only the sixth point, which was as follows: “ And for newly-discovered evidence material to their defence in said cause.” From the record it appeared that this motion was made and overruled by the court on the 23d day of May, and on the 8th day of the •subsequent August two affidavits were filed, which seem to Rave been made to be used upon such motion, but neither of these affidavits relates in any way to the discovery of new ■evidence.

The record does not show that all the evidence .given upon the trial is incorporated therein. Only a portion of the evidence of some of the witnesses is given.

The judge who signs the bill of exceptions expressly notes thereon over his official signature this statement: “ In signing the above bill of exceptions, I don’t say that the above specifi.cations of the testimony are accurate, as I kept no record of the testimony of the.witnesses.” Under such circumstances, ■the court must infer that the evidence' introduced upon the •.trial of the cause was sufficient to warrant the finding of -the jury, and authorize the court below to overrule the .motion for a new trial.

No exception to the introduction of any of the evidence ■which is set out in the bill of exceptions, or to any ruling of ithe court, seems to have been taken during the trial, and ‘•there is nothing appearing upon the face of the record to .suggest that any evidence was admitted except with the consent .®f the defendants.

The third and fifth errors assigned are, that the court erred in its charge to the jury in two different and distinct portions thereof, but we do not find in the record any evidence that any exception was taken by the counsel for the defendants to any specified or particular-part of the charge upon the trial, and that therefore the court cannot review those errors if they exist.

The rule is well settled that the exceptions cannot be reviewed unless they were taken on the trial and at the time when the instructions so complained of were given to the jury, and the evidence of that fact must appear in the bill of exceptions. Godwin vs. Bryan, 16 Fla. ; Cameron vs. The State, ib. ; Hasbaugh vs. City of Monmouth, 74 Ill., 367; 2 Phillips Ev., 1,000, and notes. The fourth, sixth, and eighth assignments of error have for their ground the failure of the court to charge the jury upon certain points in each of said numbered assignments separately mentioned.

There is not in the record am request made upon the part of the defendants by their counsel to the court to instruct the jury upon any one of these several points. Such instructions should have been asked by the counsel if they were deemed essential at the time,.' or before the court charged the jury, and had the court then, refused, exceptions should then and there have been taken to enable counsel to avail themselves of the alleged errors upon review.

The attention of the court should be called to the particular points upon which it is asked to instruct the jury, and this must be done before the jury shall have-left their jury box; if such request is not made until after the jury shall have retired to consider of their verdict, it is too late. 1 Bishop Crim. Pro., 980, and cases cited; 2-Phillips’ Ev., Cowen & Hill’s Notes, 1004. The judgment must be affirmed.