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(100 So.) tally defective because it does not allege that parties was a blood relationship as distin"George Capps and Ada Capps were related | guished from relationship by atlinity, a de by consanguinity." The motion was over mạrrer or motion to quash was the proper ruled.

method of raising the point, which we think The statute is as follows:

cannot be raised by a motion in arrest of “Punishment.—Persons within the degrees of judgment, because the terms “uncle” and consanquinity within which marriages are pro- "niece” are not so vague and indefinite that hibited or declared by law to be incestuous the use of them in an indictment would emand void who intermarry or commit adultery or barrass the defendant in the preparation of fornication with each other, shall be punished his defense or fail to advise him with sufby imprisonment in the state prison not ex- ficient certainty of the nature and cause of ceeding twenty years, or in the county jail not the accusation against him, or subject him exceeding one year."

to the liability of a second prosecution for See section 5414, Revised General Stat- the same offense. See Johnson v. State, 58 utes

Fla. 68, 50 South. 529; Edwards v. State, 62 The next section (5415) provides that,

Fla. 40, 56 South. 401; Wolf v. State, 72

Fla. 572, 73 South. 740. "A man may not marry any woman to whom he is related by lineal consanguinity, nor his tion in arrest of judgment, so the judgment

There was no error in overruling the mosister, nor his aunt, nor his niece."

is affirmed. In the case of Brown v. State, 42 Fla. 184, 27 South. 869, the court held an indictment TAYLOR, C. J., and BROWNE, J., consufficient which charged the defendant with incest in the following language:

WHITFIELD, P. J., and WEST and "Being and knowing themselves to be persons TERRELL, JJ., concur in the opinion. forbidden to intermarry, by reason that the said Isaac Brown was the father of the said Os. ceola Gaffney, née Brown, did then and there unlawfully, feloniously and incestuously have carnal knowledge, each of the body of the other, STATE ex rel. MCLEOD V. LOGAN, Sheriff. contrary,” etc.

(Supreme Court of Florida. April 5, 1924.) [1] The word "consanguinity" was not used

(Syilabus by the Court.) in that indictment. The relation of parent and child or uncle and niece is a relation by Habeas corpus ent-Nature of "habeas cor

pus" proceeding stated. consanguinity; one lineal, the other collater

The writ of "babeas corpus” cannot be al $o a man's niece is related to him in that degree of consanguinity within which utilized to perform the functions of a writ of marriage with her is prohibited by section the legality of a person's imprisonment when

error or an appeal, but is a proceeding to test 5415, supra. The word "niece” or “uncle” he is actually restrained of his liberty. defines a relationship by consanguinity with [Ed. Note.-For other definitions, see Words in a certain degree according to the civil, and Phrases, First and Second Series, Habeas common, or canon law, as certainly as the Corpus.] word "father” or “daughter" defines a relationship by consanguinity within a

Error to Circuit Court, Polk County; John tain degree. Section 5115, supra. See State S. Edwards, Judge. 1. Reedy, 44 . Kan. 190, 24 Pac. 66; State v. Guiton, 51 La. Ann. 155, 24 South. 784; the relation of A. McLeod, against John Log

Habeas corpus proceedings by the State, on & Words and Phrases, 7154, “Uncle" ; 5

an, Sheriff of Polk County. To review order Words and Phrases, 4807, “Niece”; State v: denying the writ, relator brings error. . AfJames, 32 Utah, 152, 89 Pac. 460, Goddard

firmed.
1. Amory, 147 Mass 71, 16 N E. 725. 2
Stroud's Judicial Dictionary, 1263; 39 Cyć.

F. R. Eckholdt, of Eustis, for plaintiff in
669: 3 Bouvier's Law Dictionary 3351 ; State error.
V. Tucker, 174 Ind 715, 93 N E. 3, 31 L. R. Rivers Buford, Atty. Gen., and M. C. Mc-
A. (N S.) 772. Ann Cas. 1913A, 100 (text | Intosh, Asst. Atty. Gen., for defendant in er-

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[2, 3] It is true, as counsel for plaintiff in error contend, that the gist of the offense of

ELLIS, J. The writ of habeas corpus is a incest in this state is sexual intercourse be- writ, the function of which is to cause the tween blood relations, and that such inter- body of a person who is, or claims to be. uncourse between per

ons related by athinity is lawfully deprived of his liberty to be brought not condemned in this state. Yet the words before the court that it may inquire into the “uncle” and “niece” are generally under- cause of his detention, and, if found to be ilstood to mean blood relationship. If good legal, that he may be restored to liberty. pleading required the indictment to show The plaintiff in error in this case was not, that the relationship alleged between thel at the time he applied for the writ, deprived

For other cases see same topic and KEY-NUMBER 1D all Key Numbered Digests and Indexes

of his liberty, nor is he now deprived of his , fendant to strike that question and answer is liberty, but is under an appearance bond to granted. You will not consider that question." answer a criminal charge duly lodged against

The testimony is amply sufficient to sushim.

tain the verdict which includes a finding as Habeas corpus is not a proceeding which to the defendant's paternity of the child and can be utilized in place of a writ of error or

his desertion and withholding of support, an appeal; nor does it perform the functions and no prejudicial errors are presented by of either.

the record. The order of the court denying the petition

Affirmed. for a writ of habeas corpus is affirmed.

TAYLOR, C. J., and WHITFIELD, ELLIS, TAYLOR, C. J., and BROWNE, J., concur. BROWNE, WEST, and TERRELL, JJ., conWHITFIELD, P. J., and WEST and TER

cur. RELL, JJ., concur in the opinion.

error.

KIRKLAND V. STATE.

HERRIN V. AVON MFG. CO. (Supreme Court of Florida. April 5, 1924.) | (Supreme Court of Florida. April 11, 1924.) (Syllabus by the Court.)

(Syllabus by the Court.) Criminal law ew I 182—Judgment affirmed, I. New trial em 118-Court could extend time

where all essential elements shown and no for presentation of motion for new trial durprejudicial errors appear.

ing term within four days after verdict with. Where all the essential elements of an of

out notice to opposing party. "fense are shown by ample evidence, and no

Notice to the opposing party, or his counsel, prejudicial errors are made to appear, a judg- is not a condition precedent to the right of a ment of conviction will be affirmed.

trial court, within four days after verdict and

during the term, to grant an application thereError to Circuit Court, Washington Coun- for and enter an order extending the time for ty; D. J. Jones, Judge.

presentation of a motion for new trial, not

to exceed 15 days from the rendition of the Norman Kirkland was convicted of desert- verdict. ing and withholding the means of support from his minor child, and he brings error.

2. Appeal and error 979(2)-Order grant.

ing new trial not disturbed where evidence Affirmed.

conflicts and judicial discretion not abused. A. W. Weeks, of Bonifay, for plaintiff in Where the evidence on a material issue in

a cause is conflicting and does not palpably Rivers Buford, Atty. Gen., and M. C. Mc- preponderate in favor of the verdict, and it Intosh, Asst. Atty. Gen., for the State. does not affirmatively appear from the record

that in granting a new trial any law has been PER CURIAM. This writ of error was abused, resulting in injustice, the order of the

violated or that judicial discretion has been taken to a judgment of conviction of the trial court granting a new trial will not be disdefendant of the statutory offense of desert- turbed on writ of error. ing and withholding the means of support from his minor child. Section 5496, Rev. Error to Circuit Court, Highlands County; Gen. Stats. 1920. One of the issues was the George W. Whitehurst, Judge. defendant's paternity of the child, which was

Action by John G. Herrin against the born seven months after the marriage of its

Avon Manufacturing Company, a corporamother and the defendant. If under the authority of Flores v. State, 72 Fla. 302, 73 tion. Verdict for plaintiff was set aside and

a new trial awarded, and plaintiff brings erSouth. 234, L. R. A. 1917B, 1143; Williams

ror. Affirmed. V. State, So Fla, 286, 85 South. 917, it was error to overrule a motion, without stating George A. De Cottes and Fred R. Wilson, grounds, to strike a question addressed to both of Sanford, for plaintiff in error. the wife of the defendant while testifying,

Leitner & Leitner, of Arcadia, for defend“Is that the child you have in your lap?" ant in error. no prejudice could reasonably have resulted to the defendant, since subsequently during

WEST, J. This is an action to recover the trial the following proceedings were had: damages for personal injuries sustained by

plaintiff while in defendant's employ and as “Court: Mr. Weeks, what was your motion

result of its alleged negligence. There about the child? "Mr. Weeks: I moved to strike the ques

was a verdict and judgment for plaintiff. tion of counsel, 'Is that the child you have on Upon motion the verdict was set aside and your lap?' and the answer 'Yes.'

a new trial awarded. To reriew this order "Court: The motion on the part of the de- / writ of error was taken from this court.

For other cases see same topic and KEY-NUMBER iu all Key-Numbered Digests and Indexes

а

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(100 So.) Errors are assigned upon (1) the trial way not have been given opposing counsel. court's order extending the time for 15 days Nothing other than a failure to give such from the rendition of the verdict for the notice appearing to vitiate the court's action, presentation by defendant of a motion for the order extending the time, in accordance new trial, (2) orders subsequently made deny- with the provisions of the statute, will not be ing motions of plaintiff to vacate the order held to be reversible error. extending the time, and (3) the order grant [2] The motion for new trialwas granted uping defendant's motion for a new trial. The on the ground that “the verdict is contrary to verdict was returned on February 7, 1923. the law and evidence.” Having been granted Judgment was entered on the following day. upon this ground, it is impossible to do more During the same day, upon motion of coun- than speculate as to the specific considerasel, defendant was allowed 15 days from the tions affecting the conclusion reached. The rendition of the verdict in which to present trend of the arguments in briefs of counsel its motion for new trial. It is not disputed suggests that the court may have regarded that the order extending the time for making as unsatisfactory the evidence of defendant's and presenting the motion for new trial was alleged negligence as the proximate cause of made during the term in open court and with-plaintiff's injury, or may have entertained in four days after the rendition of the ver- the view that under the evidence contribudict.

tory negligence of plaintiff was proved. We [1] It is contended that the court should express no opinion on either of these quesnot have entertained the motion without no- tions. They are vital points in the case, tice to plaintiff, or his counsel, with an op- and the evidence does not palpably preponportunity to be heard in opposition to it. derate in favor of the verdict. The order of There is nothing in the statute requiring no- the trial court in granting the new trial is tice of such application and "cause shown" presumably proper. It does not affirmative. to be given opposing counsel. Section 2811, ly appear from the record that judicial disRev. Gen. Stat. Nor is there a rule of court cretion has been abused, resulting in injusrequiring such notice. There is contained in tice, or that any law has been violated in the grounds of the motion for an extension of granting a new trial. Upon the authority time a recital that it "is impossible to file of the following decisions, the granting of said motion within four days” for the reason the motion for new trial was not reversible that the court reporter would not be able error: Cheney v. Roberts, 77 Fla. 324, 81 to transcribe bis stenographic notes of the South. 475; Ruff v. G., S. & F. Ry. Co., 67 proceedings, with defendant's exceptions to Fla. 224, 64 South. 782; Orchard v. 0. H. & rulings during the progress of the trial, with N. Ry. Co., 66 Fla. 353, 63 South, 717; Acosta in that time. The trial court considered the v. Gingles, 65 Fla, 507, 62 South. 582; Jones showing made sufficient under the statute, v. Jacksonville Electric Co., 56 Fla. 452, 47 and accordingly made the order extending South. 1; L. & N. R. R. Co. v. Wade, 49 Fla, the time for presenting the motion for new 179, 38 South. 49. trial for 15 days from the rendition of the Affirmed Ferdict. It is assumed that in the usual course of procedure notice of such applica WHITFIELD, P. J., and TERRELL, J., tion would be given opposing counsel, but concur. the court may proceed to consider and act up TAYLOR, C. J., and ELLIS and BROWNE, on such application, although notice thereof IJJ., concur in the opinion.

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EAST COAST LUMBER CO., Plaintiff in Er. J. F. ANGE, Plaintiff in Error, v. STEPHENS ror, v. J. A. BOWEN, Defendant in Error. LUMBER CO., a Corporation, Defendant in

Error. (Supreme Court of Florida, Division B. April 9, 1924. Rehearing Denied May 7, 1924.) (Supreme Court of Florida, Division B. Error to Circuit Court, Duval County; Dan

April 12, 1924.) iel A. Simmons, Judge.

Error to Circuit Court, Orange County; J. J. Axtell & Rinehart, of Jacksonville, for plain-| Dickinson, Judge. tiff in error. C. B. Peeler, of Jacksonville, for defendant in

Chas. P. Dickinson, of Orlando, for plaintiff

in error. error.

Massey & Warlow, of Orlando, for' defendant

in error. PER CURIAM. This 'cause having been heretofore submitted to the court upon the transcript of the record herein and briefs and PER CURIAM. This cause having heretoargument of counsel for the respective parties, fore been submitted to the court upon the tranand the record having been seen and inspected, script of the record of the judgment berein and and the court being now advised of its judge briefs and argument of counsel for the respecment to be given in the premises, it appears to tive parties, and the record having been seen the court, upon due consideration, that the and inspected, and the court being now advised testimony does not clearly prove the damages in of its judgment to be given in the premises, it the amount awarded. It is therefore ordered seems to the court that there is no error in the and adjudged, if the plaintiff shall enter a re- said judgment. It is therefore considered, ormittitur, so that the judgment shall be for $4,- dered, and adjudged by the court that the said 214.42, with interest as stated in the verdict, judgment of the circuit court be and the same the judgment shall stand affirmed for such $4,- f is hereby affirmed. 214.42 and interest; otherwise, the judgment will stand reversed for a new trial.

WHITFIELD, P. J., and WEST and TERIt is so ordered.

RELL, JJ., concur.
WHITFIELD, P. J., and WEST and TER-
RELL, JJ., concur.

T. W. Lane, Plaintiff in Error, v. Jessie John BRAY and Eula Bray, Appellants, v. MIL. BIGGS, by Her Next Friend, R. M. lie McCALDER, Administratrix of the Estate Biggs, Defendant in Error.

of Sam McCalder, alias Sam McKeller, De

ceased, Appellee. (Supreme Court of Florida, Division B. March 31, 1924.)

(Supreme Court of Florida, Division B. Error to Circuit Court, Hillsborough County;

April 12, 1924.) F. M. Robles, Judge.

Appeal from Circuit Court, Santa Rosa CounShackleford & Shackleford and Hilton S. ty; A. G. Campbell, Judge. Hampton, all of Tampa, for plaiptiff in error. A. B. McMullen and C. Edmund Worth, both

E. M. Magaha, of Ft. Myers, for appellants. of Tampa, for, defendant in error.

W. W. Clark, of Milton, for appellee. PER CURIAM. This cause having hereto

PER CURIAM. This cause having heretofore been submitted to the court upon the tran. fore been submitted to the court upon the script of the record of the judgment herein, transcript of the record of the decree herein and briefs and argument of counsel for the re- and briefs and argument of counsel for the spective parties, and the record having been respective parties, and the record having been seen and inspected, and the court being now

seen and inspected, and the court being now advised of its judgment to be given in the prem- advised of its judgment to be given in the premises, it seems to the court that there is no ises, it seems to the court that there is no ererror in the said judgment. It is therefore ror in the said decree. It is therefore considconsidered, ordered, and adjudged by the court ered, ordered, and adjudged by the court that that the said judgment of the circuit court be, the said decree of the circuit court be and the and the same is hereby, affirmed.

same is hereby affirmed.

WHITFIELD, P. J., and WEST and TERRELL, JJ., concur.

WHITFIELD, P. J., and WEST and TERRELL, JJ., concur.

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(100 So.)

Neither the state nor any of its governmental NABORS et al. v. HOLLY BLUFF CONSOL- subdivisions exercising such functions is subIDATED SCHOOL DIST.

ject to suit unless expressly or by necessary (No. 24112.)

implication it is so provided by statute.

Those dealing with the state or any of its
(Supreme Court of Mississippi, Division A. governmental agencies do so with the under-
April 28, 1924. Suggestion of Error
Overruled June 2, 1924.)

standing that any rights they may have are

not enforceable in the courts unless the law (Syllabus by the Court.!

so authorizes. All contracts and undertakSchools and school districts 114-Consoll- ings by the state or its governmental subdated school district cannot be sued.

divisions are obligations of honor alone, and
Under the statutes of this state governing there is no remedy in the courts given the
consolidated schools (chapter 124, Laws of other party unless the law so provides ei-
1910; chapter 182, Laws of 1914; chapter 224, ther expressly or by necessary implication.
Laws of 1914; chapter 180, Laws of 1916; Reversed, and judgment here for appel-
Chapter 194, Laws of 1916; Hemingway's Code, lants.
1 3999 to 4006, incl.), such schools are govern-
mental subdivisions and agencies exercising
governmental functions and cannot be sued un-
less there is some statute, either expressly or
by necessary implication, authorizing them to

GROSS V. STATE. (No. 23900.)
be sued; and, there being no such statute, such
schools cannot be sued.

(Supreme Court of Mississippi, Division A.

May 19, 1924.)
Appeal from Circuit Court, Yazoo County ;

(Syllabus by the Court.)
W. H. Potter, Judge.

1. Husband and wife m3(2) Husband can. Suit by one Smith and another against

not inflict corporal punishment on wife. J. W. Nabors and others, trustees of the Hol.

The husband has no right under the law to ly Bluff Consolidated School District. From inflict corporal punishment upon his wife, even a judgment for plaintiffs, defendants appeal. for the purpose of correction when done in Reversed, and judgment rendered.

moderation. Montgomery & Montgomery, of Yazoo City, 2. Courts Cm100(1)-Common law on subject for appellants.

remains as if case subsequently overruled had Campbell & Campbell and E. L. Brown, never been decided. all of Yazoo City, for appellees.

Where a court of last resort of a state held that a cortain act did not constitute a

crime under the common law, and later overANDERSON, J. Appellees Smith and ruled the case so holding and held that such act Strickland sued appellants J. W. Nabors, w. did constitute a crime under the common law, H. Yankee, and E. B, Crawford, trustees of the common law on the subject stands as if the Holly Bluff consolidated school district, in first case had never been decided. the circuit court of Yazoo county, and recovered a judgment from which appellants Appeal from Circuit Court, Wilkinson prosecuted this appeal. The controlling ques- County; R. L. Corban, Judge. tion is whether or not the trustees of a con

Albert Gross was convicted of assault and solidated school district are subject to suit.

Ayers v. Agricultural High School (Miss.) battery committed on his wife, and he ap
98 South. 847, is controlling. What was said peals. Affirmed.
in that case with reference to the question D. C. Bramlette, of Woodville, for appel-
whether an agricultural high school was sub- lant.
ject to suit applies with equal force to a Harry M. Bryan, Asst. Atty. Gen., for the
consolidated school district.

The statutes State,
covering the creation and management of
consolidated school districts are silent as to ANDERSON, J. Appellant, Albert Gross,
Whether such districts shall be subject to was indicted and convicted in the circuit
suit. Such authority is neither given express-court of Wilkinson county of the charge of
ly nor by implication. The statutes involved an assault and battery committed upon his
will be found embodied in chapter 124, Laws wife, and sentenced to pay a fine of $200 and
of 1910; chapter 180, Laws of 1916; chapter to 60 days' imprisonment, from which judg-
194, Laws of 1916; chapter 182, Laws of ment he prosecutes this appeal.
1914; chapter 224, Laws of 1914; Heming On the trial appellant requested instruc-
way's Code, $$ 3999 to 4006, inclusive. tions, which were refused by the court, to

A consolidated school district under our the effect that appellant had the right to
statutes, equally with an agricultural high chastise his wife in the form of corporal pun-
school, is a governmental subdivision and ishment provided it was done in moderation,
agency exercising governmental functions. The assignment of error based on the refusal

Am For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
100 SO.-12

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