Robert Williams, Plaintiff in Error, vs. The State of Florida, Defendant in Error, 42 Fla. 210

Carter, J.: On May 17, 1899, in the Circuit Court of Duval county, plaintiff in error was tried and convicted upon an indictment charging him with the murder of Lem Small, alleged to have been committed on March 17, 1899, in that county. From the death sentence imposed he has sued out this writ of error.

The record entries show the personal presence of the defendant at the arraignment on May 5, during the trial, and at the rendition of the verdict on May 17th, and at the sentence on May 30th, and also' that upon the rendition of the verdict he was remanded to the custody of the sheriff to await the further action of the court.

The record entries contain ho allusion to the motion for a new trial, but the bill of exceptions shows that a motion for new trial was entered after the verdict was rendered, though the exact date is not stated; that this motion was heard and denied oh May 27th, and that the attorney for defendant was present and excepted to the ruling, though it is silent as to the presence or absence of the defendant when this motion was heard and overruled.

One of the assignments of error argued is as follows : “As will appear from an inspection of the record herein this plaintiff in erorr was not personally present in said Circuit Court when motion for new.trial was heard and denied.” The motion for a new trial in this case involved no question but the sufficiency of the evidence to support the verdict, it was argued and submitted by counsel for defendant without any suggestion as to the absence of his client, if in fact he was absent, the defendant did not request to be present, nor did he when sentenced, or at any other time suggest to the court that he was absent when his motion was overruled.

A few courts hold that the record must show the-personal presence of an accused person when his motion for a new trial is submitted and ruled upon (Simpson v. State, 56 Miss. 297; Hooker v. Commonwealth, 13 Gratt. (Va.) 763; State v. Parsons, 39 W. Va. 464, 19 S. E. Rep. 876; Gibson v. State, 3 Tex. App. 437), but we are of opinion that it is not necessary to the validity-of a judgment in felony cases that the record should show affirmatively that the defendant was personally present at the hearing of and the ruling upon his motion for a new trial. Commonwealth v. Costello, 121 Mass. 371, S. C. 23 Am.

Rep. 277; Davis v. State, 51 Neb. 301, 70 N. W. Rep. 984; State v. Greer, 11 Wash. 244, 39 Pac Rep. 874; Lillard v. State, 151 Ind. 322, 50 N. E. Rep. 383; State v. Brown, 63 Mo. 439; Dorsey v. State, 107 Ala. 157, 18 South. Rep. 199; People v. Ormsby, 48 Mich. 494, 12 N. W. Rep. 671; Territory v. Chenowith, 3 N. M. 318, 5 Pac. Rep. 532; State v. Jefcoat, 20 S. C. 383; Jewell v. Commonwealth, 22 Pa. St. 94; State v. Hardaway, 50 La. Ann. 1345, 24 South. Rep. 320. See, also, Irvin v. State, 19 Fla. 872, text 894. The other questions presented relate to the sufficiency of the evidence to support the verdict.

They were, presented to the lower court by motion for a new trial and an exception taken to its refusal. We are of opinion ‘that the verdict is supported by sufficient evidence, and that the court did not err in overruling the motion for a new trial. The judgment is affirmed.