James Duggan, Appellant, vs. the State of Florida, 9 Fla. 516

WALKER, J., delivered tlie opiiiioxi of the Court; At the Eall Tetra 1860, of Escambia Circuit Court, thé plaintiff in error was tried, convicted and sentenced for the murder of William Wallace. The assignment of error in this Ooul-t is, that “ it does not appear from the record proceedings of this case in the Court below, that the Judge filed the charge which he de=' livei-ed to the jtiryv’ This assignment would unquestionably he sufficient ground for reversal if supported by the record. The 8th

section of “

An Act to provide writs of error in criminal cases,” ap= proved January 4, 1848, reads as follows : “ Sec. 8. JBe it fwriher enacted, That charges made by Judges to juries in all criminal cases, shall he reduced to writing and filed ill the case, and shall he exclusively on points of law; and that any violation of this

section shall he deemed and construed to be error from Which a writ of error may be prayed as of right.” The language of this act is too plain for comment, and' in every criminal case where it shall appear that a Jttge has charged a jury either upon the law or facts, without rediu cing his charge to Writing and filing it in the case, we should hold it to be error. But the difficulty in the way of reversal in this case is, that it does not appear that the Judge delivered any charge to the jury either upon the law or facts, written or unwritten.

The only part of the record which speaks of a charge is, that part which says the prisoner was led into Court by the Sheriff, and then proceeds thus: “Whereupon came a jury, &c., who being duty chosen, tried and sworn, after hearing the evidence and argument of counsel and under the charge of the Court, retired to consult of their verdict,” &c. It is contended that the words “ and under the charge of the Court, retired,” &c., furnish evidence that the Court delivered a charge to them upon the law or facts of the case which ought, under the statute, to have been reduced to writing and filed.

But after much reflection we have been unable to reach that conclusion. The record does not say that the jury after hearing the evidence and argument of counsel and the charge of the Court, retired, <fec.; but it says that after hearing the evidence and argument of counsel and lender the charge of the Court, they retired, &c. Even though the Judge had not addressed a word to them, yet this language of the record would be true and proper, because the jury always retires under the charge, protection and care of the Court.

This language is but a formula which may, and perhaps should be used in all cases whether the Judge has charged the jury on the law or facts or not. It is usual for the Judge to instruct the jury on their withdrawal touching their behavior in retirement as that they shall not speak to any one or suffer any one to speak to- them, &c., but we are clear that such remarks do not constitute a “ charge” within the meaning of the statute above'referred to.

If the Juge did charge the jury within the meaning of that statute, the plaintiff in error, if he desired to take advantage of it, should have moved the Court to amend the record so as to set out that fact distinctly, or else to have obtained from tbe Judge a statement to tliat effect in the nature of a bill of exceptions, and in case the Judge refused to sign said statement, then it was the right of the plaintiff in error, under the first

section of said act, to have said statement signed by any three persons in the presence of the ■ Judge. If tbe Judge did charge the jury, it was his duty to file his charge in the case. We must presume lie did his duty in tbe absence of proof to the contrary.

Therefore, let this case be remanded to the Circuit Court in and for the county of Escambia, and tbe Judge bolding said Court be directed to cause tbe said James Duggan to.be brought before him in open Court, and nothing appearing why sentence of death should not again be passed upon him, that said Judge in open Court do re-sentence the said James Duggan to be executed at such time and place as said Court may deem fit and proper, and that said Court do cause said sentence to be carried into execution. Per eurimi.