cognizable SEC. 36. Where any person is tried in any Circuit Court of May convict of this State for an offence of which such Circuit Court has origi- lesser zoble by nal jurisdiction, and such person is found to be guilty of any inferior court. lesser offence included in the offence for which indictment or information is filed against him, and for which he is being tried, and is not found guilty of the greater offence, he may be convicted in said court and sentenced for such lesser offence, though it be an offence of such a nature as would come originally within the jurisdiction of an inferior court. (y) SEC. 37. In every case in which the punishment of imprison- Form of senment in the State prison is awarded against any convict, the tence when to be imprisoned form of the sentence shall be, that he be imprisoned by con- in penitentiary. finement at hard labor; and he may also be sentenced to solitary imprisonment for such term as the court shall direct, not exceeding twenty days at one time; and in the execution of such punishment the solitary imprisonment shall precede the 16 Fla., 515-591. punishment by hard labor, unless the court shall otherwise order. (z) 15 SEC. 38. In all cases in which persons may be convicted of sentence when any offence, and sentenced to imprisonment in a county jail, oned in county to be impristhe court may also sentence such prisoner to be employed at jail. hard labor, and in such case the prisoner may be employed at such manual labor as may be directed by the County Commissioners of the county, in or upon any public buildings, yards, streets, alleys, bridges, or public works of any kind within their county, and under such regulations as they may prescribe, but not to exceed ten hours' labor in each twenty-four hours. (z) SEC. 39. Whenever it shall appear to the court, at the time when no jail in of passing sentence upon any convict who is to be punished by the county. confinement in the State prison or county jail, that there is no jail in the county in which the offence was committed, suitable for the confinement of such convict, the court may order the sentence to be executed in any county in this State in which there may be a jail suited to that purpose; and the expense of supporting such convict shall be borne, if such convict was sentenced to imprisonment in the county jail, by the county in which the offence was committed. (z) when sentence SEC. 40. When any person shall be convicted of any crime Duty of clerk for which sentence of death shall be awarded against him, the is death duty clerk of the court, as soon as may be, shall make out and de- of sheriff. liver to the sheriff of the county a certified copy of the whole record of the conviction and sentence, and the sheriff shall forthwith transmit the same to the Governor; and the sentence of death shall not be executed upon such convict until a warrant shall be issued by the Governor, under the seal of the State, with a copy of the record thereto annexed, commanding the sheriff to cause execution to be done, and the sheriff (y) Sec. 1, Chap. 8271, Act of Feb. 4, 1881. (z) Secs. 23, 24 and 25, Sub-Chap. 13, Chap. 1637, Act of Aug. 6, 1888. Death sentence, shall thereupon cause to be executed the judgment and sentence of the law upon such convict. (z) SEC. 41. The punishment of death shall in all cases be inhow inflicted. flicted by hanging the convict by the neck until he be dead; and the sentence shall, at the time directed by the warrant, be executed within the walls or inclosure of a jail or prison in the county where such prisoner may be confined. (z) Who shall be present. Death wariant. Repeal. Whipping. SEC. 42. The sheriff of such county shall be present at the execution, unless he is prevented by sickness or other casualty, and also two of his deputies, to be designated by him, and he shall request the presence of the State Attorney, Clerk or Clerks of the County Courts, and twelve reputable citizens, including a physician or surgeon. He shall permit the counsel of the criminal, such ministers of the Gospel as the criminal desires, and his relations, to be present, and also such officers of the prison, deputies and constables, military guard and other assistants, as he sees fit. (a) SEC. 43. When the punishment of death shall be inflicted upon any convict, in obedience to a warrant from the Goverernor, the sheriff shall return the warrant, with a statement under his hand, of his doings therein, as soon as may be after the said execution, to the Governor, and shall also file in the clerk's office of the court where the conviction was had, an attested copy of the warrant and statement aforesaid; and the clerk shall subjoin a brief abstract of such statement to the record of conviction and sentence. (a) SEC. 44. All laws of this State heretofore passed prescribing other penalties or punishments for the offences enumerated or included under the provisions of Chapter 1637, Act of 1868, are hereby repealed: Provided, That no offence committed and no penalty or forfeiture incurred previous to the passage of said chapter shall be affected by such repeal, and no prosecution had or commenced shall be abated thereby, except that when any punishment, forfeiture or penalty shall have been mitigated by the provisions of said chapter, such provisions shall apply to and control any judgment or sentence to be pronounced; and all prosecutions shall be conducted according to the provisions of law in force at the time of such further prosecution and trial, applicable to the case. (a) SEC. 45. In case any of the provisions of Chapter 1637, Act of 1868, shall contravene or be inconsistent with the provisions of any pre-existing law, the provisions of said chapter shall prevail. (a) SEC. 46. The punishment of whipping shall be inflicted on the bare back of the culprit with a cow-skin, or other instrument of the like flexibility, and when the punishment of exposure on the pillory shall be inflicted the pillory shall be placed in a square, street, road or other public exposed place. (b) (z) Secs. 26 and 27, Sub-Chap. 13, Chap. 1637, Act of Aug. 6, 1868. (a) Secs. 28, 29, 30 and 31, Sub-Chap. 15. Chap. 1637, Act of Aug. 6, 1868. (b) Sec. 4, Act of Feb. 10, 1832. to do whipping. SEC. 47. Whenever any criminal shall be sentenced to be Sheriff may whipped by any Judge of any court it shall be lawful for the employ person sheriff, at his own proper cost, to employ another person to execute the sentence of the court: Provided, That the said sheriff shall always be present during the execution of the order of the court, directing the infliction of punishment, and shall see that the same be faithfully executed." (c) CHAPTER 88. CRIMINAL PROCEEDINGS-NEW TRIALS. 1. Motions for new trials, and in arrest of judgment, how and when to be made; when to operate as a supersedeas. 2. Judgment after verdict or award not to be stayed or reversed for certain defects or variances; SECTION 1. No motion for a new trial, or in arrest of judg- When to be ment, shall be made unless the party intending to make the made. same shall file his reasons with the clerk in writing, and cause his motion to be placed upon the motion docket within four days after the verdict shall have been rendered, and during the same term; nor shall a motion for a new trial, or in arrest of judgment standing over from one term to another, operate as a supersedeas unless so ordered by the court. (a) tion in arrest sustained. Fla., 136, 13 Fla., 571-602. 12 Fla., 152-562. Supersedeas. SEC. 2. No judgment after the verdict of a jury, or an award Effect of moof arbitrators, shall be stayed or reversed for any defect or fault in the original writ, or for a variance between the writ and declaration, or for any mispleading, insufficient pleading, or misjoining of the issue, or.for any faulty count in the dec- 8 laration, where the same declaration contains one count or more which is or are good, or for any informality in entering up the judgment by the clerk; and when a judgment is ar- 6 Fla., 306-591. rested, the plaintiff shall not be compelled to bring a new suit, 12 Fla., 640-543. provided the first writ or summons shall be sufficient, but the 14 Fla., 128-66. court may order new pleadings to commence, where the error causing the arrest began, and the party committing it shall be liable to the costs occasioned thereby. (a) 16 Fla., 554. 9 Fla., 246. 12 Fla., 497-552. (c) Sec. 24, Act of Nov. 19, 1828. (a) Secs. 52 and 54, Act of Nov, 23, 1828. Bill of exceptions. 8 Fla., 136. 13 Fla., 571-602. 16 Fla., 564. 17 Fla., 370. 9 Fla., 163. 12 Fla., 562. 2 Fla., 562. CHAPTER 89. CRIMINAL PROCEEDINGS-ERRORS AND APPEALS. 1. Duty of Judges of the Circuit Courts as to bills of exceptions; what bill to state; proceedings to be had when Judge refuses to sign bill of exceptions. 2. Manner of proceeding when court refuses to sign bill of exceptions; what to be done if Judge refuses to allow the exceptions to be filed. 3. Force and effect of writs of error in capital cases; when to be issued. 4. Writs of error, how obtained in cases not capital. 5. When writ of error to be a supersedeas; in capital cases person of defendant the only security. 6. When writ of error to discharge prisoner from custody; proceedings in Circuit Court if Supreme Court affirms judgment. 7. Manner of granting writ when defendant is unable to pay costs or give recognizance; defendant may be released from custody upon giving bond with securities. 8. Exceptions may be taken upon refusal of Judge to grant new trial; such exceptions to become part of bill of exceptions. 9. Upon whom such writs of error to be served. 10. Plaintiff in error or appellant to be reimbursed upon reversal of judgment. 11. Writs of error in capital cases to be allowed in same manner as writs of error in cases of misdemeanor and crimes not capital: power of Circuit Judges as to allowing or directing writs of error to issue. SECTION 1. It shall be the duty of the Judges of the Circuit Courts of this State, upon the trial of any person or persons charged with crime or a misdemeanor in said court, to sign and seal, upon request, any bill of exceptions taken during the progress of the cause, and tendered to the court: Provided, The said bill of exceptions as tendered fairly states the truth of the matter, and the exception designed to be taken; and the same shall, when signed, become a part of the record of such 10 Fla., 133-207. cause; and in case the Judge refuses to sign a bill of exceptions when the same is tendered for that purpose, then it shall be lawful for three persons to sign the same in the presence of the Judge, as is now provided by law in civil cases may be bill of excep- done, and the Supreme Court of this State shall admit the same in like manner as a bill of exceptions. (a) 9 Fla., 422-530. 5 Fla., 465. 6 Fla., 306. When Judge refuses to sign tions. How signed when refused by court. SEC. 2. If any court refuse to sign a bill of exceptions, when the same is tendered to them for that purpose, it shall be lawful for three persons to sign the same in the presence of the said Judge, and also that the same was presented to the Judge, and he refused to sign it, which bill shall be as valid, and have the same force, as though it were signed by the Judge of said court; and the court shall permit the same to be filed and be (a) Sec. 1, Chap. 138, Act of Jan. 11, 1848. come a part of the record. And if the Judge refuses to let the same be filed as aforesaid, the Supreme Court may, when such case is brought before them, by writ of error or appeal, upon affidavit of such refusal, admit such bill of exceptions as a part of the record. (b) SEC. 3. In all capital cases writs of error shall be writs of Writs of error. right, and remove the record of said cause to the Supreme Court, and they shall issue on the application of the defend- When issued. ant. (c) in cases not SEC. 4. Any party convicted of crime or misdemeanor not writ of error capital, shall be entitled to a writ of error to the Supreme capital. Court, upon complying with the following terms: He shall obtain from the clerk a copy of the record of the case, duly certified, and cause the same, together with an assignment of the error relied on for reversal of the judgment, to be presented 7 Fla., 9. 15 Fla., 517. to the Supreme Court, or to one of the Justices thereof; and if 11 Fla., 174. such court or Justice, upon inspection of the record, shall be 15 Fla., 375. of opinion that there is just cause for allowing a writ of error, he shall so endorse on such a record, and thereupon a writ of error shall issue from either the Circuit or Supreme Court. (c) SEC. 5. In no case, whether capital or not, shall any such When shall be writ of error be a supersedeas to the execution of the judg- supersedeas. ment, sentence or order complained of, except upon payment by such plaintiff in error of all the costs which have accrued in such case, up to that time, and upon securing by recognizance, to be entered into with one or more sureties, according to law, before the Clerk of the Circuit Court, in a sum sufficient to secure the payment of such judgment, fine and future costs, as may be adjudged and affirmed in the Supreme Court; and also conditioned, that the said party shall be personally 7 Fla., 10. forthcoming to answer and abide the final order, sentence or judgment that may be passed in the premises by the Supreme Court, and in case the cause is remanded to the Circuit Court, then that the said plaintiff in error shall personally be and appear at the next term of the Circuit Court, in the county in which the cause was originally tried, thereafter to be held, to answer in the premises, and not depart from the court without leave thereof: Provided, That in cases where capital punish- Person of dement is by the judgment or sentence of the court ordered to be inflicted, the person of the defendant shall be the only security capital cases. required for his forthcoming to answer as aforesaid. (c) fendant only security in charge a party SEC. 6. If the party applying for such writ of error shall at when writ of the time be in custody under the sentence of conviction, the error shall disallowance of such writ of error, and the obtaining of such su- from custody. persedeas, shall not discharge such party from custody, except by order of the court, or of the Justice allowing the writ of error, which shall be only made in cases bailable according to the course of the common law, or by the statutes of this State; and upon the affirmance of any judgment in any case brought (b) Sec. 68, Act of Nov. 23, 1828. (c) Secs. 2, 3 and 4, Chap. 128, Act of Jan. 11, 1848. |