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Silas Gladden vs. The State of Florida-Opinion of Court.

Before a person can avail himself of the defense that he used a weapon in defense of his life, and be justified, he must satisfy the jury that that defense was necessary at the time; that he did all he could to avoid it, and that it was necessary to protect his own life or to protect himself from such great bodily harm as would give him a reasonable apprehension that his life was in immediate danger. 1 Archbold's Crim. Pldg. & Pract., 796; Reg. vs. Smith, 8 Car. & P., 160.

The next instruction asked and refused, numbered five, so far as it had any application to the case, and so far as it should have been given, was embraced sufficiently in other charges of the court.

The next instruction, numbered six, and refused, was: "You must be the judges whether the danger must be immediate or unavoidable at the time of killing. To justify the prisoner in the act must depend upon the facts and circumstances of the whole state of facts before him as proven before you."

What facts justify or excuse the killing is a question of law not to be determined by the jury.

What facts are sufficient to excuse the act may be stated by the court, and it is the province of the jury to determine whether such facts exist in the particular case.

The next instruction, numbered eight, which was asked and refused, was properly refused for the reasons stated in the previous portion of this opinion. It is within the province of the court, after defining the different grades of homicide, to restrict its charges to such a state of acts as exist. Under the laws of this State the court must confine its charge exclusively to points of law; but as every charge upon a point of law must be based upon a given state of facts, it is not the duty of the court to extend their charges beyond what is properly embraced within. the testimony adduced. It should be careful, however, to give instructions covering all reasonable deductions of fact.

Thus, in a case where there was no question as to the use of a deadly weapon, as in this case, and where the testimony of

Silas Gladden vs. The State of Florida-Opinion of Court.

all the witnesses to the act was explicit as to this fact, it is within the province of the court to restrict its charge to such points of law as are applicable in a case where the use of a deadly weapon may or may not be justified.

The last error assigned is the denial of the motion for a new trial upon the several grounds alleged.

We will consider but one of them, which was the absence of the prisoner from the court for some minutes three several times during the progress of the trial-at one time when one of the State witnesses was being examined, at another when a witness for the defense was being examined, and a third time during the argument of counsel. The absence was voluntary, but without any express waiver of his right to be present.

It is unnecessary for us to determine whether the prisoner can waive his right to be present during the trial, or whether a simple voluntary absence upon his part can be held to be a waiver of his constitutional right, and authorize the State to proceed in in his absence. These quesions have been settled in this State.

This court has laid down the rule very broadly, and has, perhaps, extended it beyond the views of the courts of some other States.

In Holton vs. State, 2 Fla., 500, the court say: "During the trial of a capital case (the whole trial) the prisoner has a right to be and must be present. No steps can be taken by the court in the trial of the cause in his absence. The prisoner charged must be present in court to make his objections to any and every step that may be taken which he may deem illegal." According to this view there was manifest error here, and the court should have awarded a new trial. We do not propose to examine the cases upon the subject. It is a decision covering the precise point.

Let the judgment of the circuit court of Jackson county be reversed, the indictment quashed, and the prisoner held to answer a new bill of indictment to be preferred against him,

Jason Gregory vs. Adam McNealy-Syllabus.

and the cause be remanded for further proceedings in accordance with this opinion.

If, however, upon an accurate examination of the record of the court below, it appears that the grand jury, when organized, consisted of fifteen persons, it is then ordered that a new trial be awarded, and that the cause be remanded for further proceedings in accordance with this opinion.

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JASON GREGORY, PLAINTIFF IN ERROR, VS. ADAM MCNEALY, DEFENDANT IN ERROR.

1. In an action by the bearer of a promissory note against the maker, a plea setting up "that the plaintiff at the time of the commencement of the suit did not possess, and was not seized in his own right of the legal title to the promissory note, the same not having been assigned or transferred to him by the original payee thereof, or by and other person having the legal thereto," is not a good plea.

2. Possession by plaintiff in his own right at the commencement of a suit upon a note payable to bearer is not essential to a recovery. Possession by an agent or trustee is sufficient to maintain an action at law in his own name as bearer, and proof of agency only results in permitting the defendant to avail himself of any defense against the principal which he may have.

3. A plea of this kind is not available unless it sets up that plaintiff is possessed mala fide, or by casualty without consideration.

4. Plea of an assignment of such a note to plaintiff by a party not having the legal title would not defeat the action. It should go further, and set up that it was not acquired bona fide, and for a valuable consideration without notice.

5. The entry, "this day came the parties by their attorneys," preceding a judgment nil dicit, which is followed by a direction to stay execution embodied in the judgment, accompanied with partial payments upon the execution, when issued, held to be evidence that the parties were present when the judgment was entered, and that a plea of the character mentioned was abandoned.

Jason Gregory vs. Adam McNealy-Opinion of Court.

6. When there

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are good counts and bad counts in a declaration, there is a plea to the good counts upon which issue is joined, and the issue is undisposed of, yet if the plea is bad in substance, a judgment of the court below, which is warranted by the good counts, will not be reversed upon a writ of error.

The opinion states the case.

D. P. Holland for Plaintiff in Error.

Papy and Peeler for Defendant in Error.

WESTCOTT, J., delivered the opinion of the court:

This was an action of assumpsit brought by Adam McNealy as the holder or bearer of a promissory note of which the plaintiff in error was maker, which note was payable to Allen H. Bush, or bearer. The declaration contains a count upon the note in all respects properly drawn, and the usual common counts the common counts, however, being in blank so far as the statement of the amount of money sought to be recovered under them is concerned, and hence defective.

The defendant appeared and subsequently filed pleas. These pleas were, first, the plea of the general issue to the common counts, and a plea in response to the count upon the promissory note, alleging "that the plaintiff at the time of the commencement of this suit did not possess and was not seized in his own right of the legal title to the said promissory note sued on, the same not having been assigned or transferred to him by the original payee thereof, to wit: Allen H. Bush, or by any other person having the legal title thereto."

Upon this plea issue was joined. At a subsequent term in October, 1866, the following judgment was entered:

"Now, on this day came the parties, by their attorneys, and the defendant saying nothing in bar or preclusion thereof, it is therefore considered by the court that the plaintiffs have and recover of and from the defendant the sum of two thousand

Jason Gregory vs. Adam McNealy-Opinion of Court.

three hundred and forty-four dollars and eighty-eight cents, and his costs in and about the suit in this behalf expended, and that execution be stayed until the first day of January, next."

It appears from the record, that after the rendition of the judgment, execution was stayed until the January following, when it was issued, and that subsequently the sum of eleven hundred and seventy-two dollars was paid upon the execution on the 4th of March, 1867.

The rendition of this judgment, in the condition of the pleadings as stated, is assigned as error.

The first and third errors assigned, which we propose to consider together, are in substance that "the judgment is nil dicit, while the record shows that pleas were filed and issue joined on the second plea."

It is contended in argument by the plaintiff in error that the second plea here filed was a good plea, and that this being the case, a judgment nil dicit when there is a good plea filed upon which issue has been joined is erroneous; while it is replied by the defendant in error, that the second plea here filed is not a good plea in substance, that the record discloses that it was abandoned, and that the court will, upon a review of the whole case as it appears from the record, affirm the judgment if these two propositions be correct.

It was held in the case of Hooker vs. Galligher, 6 Fla., 352, that "it is error for the court to give a judgment by default as for want of a plea when there is a good plea in the case upon which issue has been joined." It may be remarked that the record in this case disclosed that it was a plea of set off, and there was affirmative evidence that it had not been abandoned by defendant.

In Thomas vs. Brenn, 1 Stewart, 412, the court held that where there was a good plea, proper in form and substance, undisposed of, and there was no evidence of abandonment, the judgment was erroneous.

We think, from these and other authorities, that whatever

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