George Reynolds, Plaintiff in Error, vs. The State of Florida, Defendant in Error, 34 Fla. 175

Liddon, C. J.: The plaintiff in error, together with James Reynolds,. Jesse Greek and Willis Hodges, were indicted in the-Circuit Court of Baker county for the murder of James. Sweat. Upon the first trial of the case all of the defendants except Hodges, who was not tried jointly with them, were convicted of manslaughter. This conviction, upon writ of error to this court, was reversed and a new trial granted. (33 Fla., 301, 14 South.

Rep. 723). ■ The transcript of the record is not very skilfully prepared, but it appears from the same that the defendants who once plead not guilty to the indictment without withdrawing their plea of not guilty, or first obtaining any leave of court therefor, filed a paper purporting to be a plea in abatement. This plea in abatement attempted to set up certain illegalities and irregularities in the grand jury which found the indictment. Upon motion of the State Attorney this plea was stricken from the files of the court.

The defendants then moved the court for leave to withdraw their plea of not guilty, and for leave to file the plea in abatement. This motion was denied by the court. Then, as the case was about to proceed to trial, ‘ ‘the defendants protested against being tried without arraignment, and insisted that if they are to be tried upon said charge that they be arraigned and allowed to plead thereto as they may deem advisable.” This-objection was overruled by the court, and the defendants were put upon trial without further arraignment.

The other defendants were acquitted, but the plaintiff in error was convicted of manslaughter in the third degree, with a recommendation to the mercy of the court. Nine assignments of error are filed herein. Such of them as are argued in the brief of the plaintiff in error will be herein considered. In accordance with the-rule laid down by this court in such cases, the-assignments of- error not argued are treated as abandoned. The first assignment of error is not argued. The first and second assignments'of error relate to the-refusal of the court to rearraign the defendants.

It is contended that as the former verdict of guilty of manslaughter was an acquittal of the defendants of all higher degrees of homicide, that the issue to be-presented to the jury on the new trial was whether the-defendants were guilty of any of the decrees of manslaughter. (The offense was alleged to have been committed before the Revised Statutes abolishing degrees in manslaughter went into effect).

As the indictment upon its face charged murder in the first degree,, of which defendants were impliedly acquitted, they claimed that the issue of their guilt of manslaughter is a new one, and that they should have been re-arraigned and permitted to plead anew to the same. The authorities uniformly support the proposition that when a new trial is granted in a criminal case, whether by the court of original jurisdiction or upon reversal of the conviction by an appellate court, no further arraignment or plea is necessary, that the case stands just as it did before conviction, and is just as if no trial had been had.

Levy vs. State, 49 Ala., 390; Byrd vs. State, 1 Howard (Miss.). 247; State vs. Stewart, 26 S. C., 125, 1 S. E. Rep.. 468; 1 Bishop’s Crim. Pro., sec. 730 a, and authorities cited in note. In all the cases cited above it seems that the new trial was granted, after a conviction to the fullest extent, or of fhe highest grade of crime charged in the indictment.

Neither the Attorney-General, nor counsel for plaintiff in error, have cited us to any case parallel to this, nor have we been able to find one where the question of re-arraignment was presented upon a new trial granted .after a conviction of a lower grade of the offense •charged which was an ini pled acquital of all higher .grades. The only case where the precise point seems to liave arisen at all is that of State vs. Martin, 30 Wis., 216, but the court evaded a decision.. So we are left to. determine the question without the light of precedent, but upon principle only.

Upon principle we are of the ojúnion that the defendants once having plead not guilty to the indictment, there was no necessity for further arraignment in this case. The indictment against them for murder charged every grade of homicide. Potsdamer vs. State, 17 Fla., 895, text 903. The plea of not guilty to this indictment was a denial that they were guilty of murder in any of its degrees, •or manslaughter in any of its degrees. Involved in a trial upon this plea was a question of their guilt of ■every grade of unlawful homicide.

The verdict having been set aside, the case stands at issue (except as to the higher grades of homicide of which they have been constructively acquitted) for a new trial upon the same indictment and the same pleas. To re arraign the defendants and require them to plead anew would be an idle repetition. All that could be accomplished by arraignment had already been sufficiently accomplished, that is the forming of an issue between the State and the defendants upon the indictment.

In ■order to do full justice between the State and the defendants it was only necessary that the court should advise the jury of the former implied acquittal of the defendants, and that their duty was to decide upon their guilt or innocence of the lower degrees of homicide, and should instruct them in the laAV applicable to the different degrees of manslaughter. The third assignment of error is based upon the admission of the evidence of Nathan Peas, a State witness. The objection to this testimony was that it was incompetent, irrelevant and not a part of the res gestee. The objection Avas not Avell taken.

The evidence of this witness tended to show that the defendant was near the scene of the difficulty on the night the same occurred. It was properly admitted. The fourth assignment of error Avas that the form of oath used in capital cases was administered to the jury. Such an oath is recited in the bill of exceptions as having been administered to the jury, but it is not the province of a bill of exceptions to show the selection, empannelling and SAvearing of the jury. These matters properly belong to the record.

The record states that the jury was “duly tried, accepted and sworn according to'law.” The record shows that the jury were properly sworn, and wTe cannot upon this subject regard any contradicting statements of the bill of exceptions, or look beyond the record. Potsdamer vs. State, 17 Fla., 895; Garner vs. State, 28 Fla., 113, 9 South. Rep., 835; Brown vs. State, 29 Fla., 494, 11 South. Rep., 181; Brown vs. State, 29 Fla., 543, 10 South. Rep., 736; Palmquist vs. State, 30 Fla., 73, 11 South. Rep., 521. The fifth assignment of error is not well taken. The testimony of Dr.

Williams as to statements made to him by the defendant George Reynolds were entirely proper and admissible. The sixth, eighth and ninth assignments of error are1 based upon the charge of the court. Two paragraphs have been selected from the charge of the court and presented to us to sustain these assignments. The record affirmatively shows that other instructions besides those complained of were orally given to the jury by the court but they are not included in the bill of exceptions or brought up by the record in the case. We can not consider these assignments.

The rule in this respect has been thus stated: “Where a part of a charge is excepted to, the whole charge should be considered, and if the charge considered as a whole is free from the objection urged the exception should be overruled.” Andrews vs. State, 21 Fla., 598. A similar rule has been laid down in Pinson vs. State, 28 Fla., 735; Smith vs. Bagwell, 19 Fla., 117; Terry vs. Buffington, 11 Ga., 337; S. C. 56 Am. Dec., 423; Elliott’s Appellate Procedure,

Section 193. Not having the whole charge before us we can not tell how these portions not brought before us might have modified or affected the construction of the paragraphs excepted to. All presumptions being in favor of the ruling of the court below, we could not find reversible error, upon being shown only two isolated paragraphs-of the charge given by the Circuit Judge. In order for us to consider exceptions taken to the instructions given by the court in its charge to the jury, the whole charge should be brought up by the bill of exceptions. The judgment of the Circuit Court is affirmed.