(100 So.) tally defective because it does not allege that "George Capps and Ada Capps were related by consanguinity." The motion was overruled. The statute is as follows: "Punishment.-Persons within the degrees of consanquinity within which marriages are prohibited or declared by law to be incestuous and void who intermarry or commit adultery or fornication with each other, shall be punished by imprisonment in the state prison not exceeding twenty years, or in the county jail not exceeding one year." parties was a blood relationship as distinguished from relationship by affinity, a de murrer or motion to quash was the proper method of raising the point, which we think cannot be raised by a motion in arrest of judgment, because the terms "uncle" and "niece" are not so vague and indefinite that the use of them in an indictment would embarrass the defendant in the preparation of his defense or fail to advise him with sufficient certainty of the nature and cause of the accusation against him, or subject him to the liability of a second prosecution for See section 5414, Revised General Stat- the same offense. See Johnson v. State, 58 utes. The next section (5415) provides that "A man may not marry any woman to whom he is related by lineal consanguinity, nor his sister, nor his aunt, nor his niece." In the case of Brown v. State, 42 Fla. 184, 27 South. 869, the court held an indictment sufficient which charged the defendant with incest in the following language: "Being and knowing themselves to be persons forbidden to intermarry, by reason that the said Isaac Brown was the father of the said Osceola Gaffney, née Brown, did then and there unlawfully, feloniously and incestuously have carnal knowledge, each of the body of the other, contrary," etc. [1] The word "consanguinity" was not used in that indictment. The relation of parent and child or uncle and niece is a relation by consanguinity; one lineal, the other collateral So a man's niece is related to him in that degree of consanguinity within which marriage with her is prohibited by section 5415, supra. The word "niece" or "uncle" defines a relationship by consanguinity within a certain degree according to the civil, common, or canon law, as certainly as the word "father" or "daughter" defines a relationship by consanguinity within a certain degree. Section 5115, supra. See State v. Reedy, 44 .Kan. 190, 24 Pac. 66; State v. Guiton, 51 La. Ann. 155, 24 South. 784; S Words and Phrases, 7154, "Uncle"; 5 Words and Phrases, 4807, "Niece"; State v. James, 32 Utah, 152, 89 Pac 460, Goddard v. Amory, 147 Mass 71, 16 N E. 725. 2 Stroud's Judicial Dictionary, 1263; 39 Cyć. 669; 3 Bouvier's Law Dictionary 3351; State v. Tucker, 174 Ind 715, 93 N E. 3, 31 L. R. A. (N S.) 772. Ann Cas. 1913A, 100 (text 102). STATE ex rel. McLEOD v. LOGAN, Sheriff. (Supreme Court of Florida. April 5, 1924.) (Syllabus by the Court.) Habeas corpus 4-Nature of "habeas corpus" proceeding stated. The writ of "habeas corpus" cannot be utilized to perform the functions of a writ of the legality of a person's imprisonment when error or an appeal, but is a proceeding to test he is actually restrained of his liberty. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Habeas Corpus.] [2, 3] It is true, as counsel for plaintiff in error contend, that the gist of the offense of incest in this state is sexual intercourse between blood relations, and that such intercourse between persons related by affinity is not condemned in this state. Yet the words "uncle" and "niece" are generally understood to mean blood relationship. If good pleading required the indictment to show that the relationship alleged between the For other cases see same topic and KEY-NUMBER in all Key Numbered Digests and Indexes ELLIS, J. The writ of habeas corpus is a writ, the function of which is to cause the body of a person who is, or claims to be. unlawfully deprived of his liberty to be brought before the court that it may inquire into the cause of his detention, and, if found to be illegal, that he may be restored to liberty. The plaintiff in error in this case was not, at the time he applied for the writ, deprived 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 him. Habeas corpus is not a proceeding which can be utilized in place of a writ of error or an appeal; nor does it perform the functions of either. The order of the court denying the petition for a writ of habeas corpus is affirmed. TAYLOR, C. J., and BROWNE, J., concur. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur in the opinion. The testimony is amply sufficient to sustain the verdict which includes a finding as to the defendant's paternity of the child and his desertion and withholding of support, and no prejudicial errors are presented by the record. BROWNE, WEST, and TERRELL, JJ., con- cur. KIRKLAND v. STATE. HERRIN v. AVON MFG. CO. (Supreme Court of Florida. April 5, 1924.) (Supreme Court of Florida. April 11, 1924.) Criminal (Syllabus by the Court.) law 1182-Judgment affirmed, where all essential elements shown and no prejudicial errors appear. Where all the essential elements of an offense are shown by ample evidence, and no prejudicial errors are made to appear, a judgment of conviction will be affirmed. (Syllabus by the Court.) I. New trial 118-Court could extend time for presentation of motion for new trial during term within four days after verdict without notice to opposing party. Notice to the opposing party, or his counsel, is not a condition precedent to the right of a trial court, within four days after verdict and during the term, to grant an application there Error to Circuit Court, Washington Coun- for and enter an order extending the time for ty; D. J. Jones, Judge. Norman Kirkland was convicted of deserting and withholding the means of support from his minor child, and he brings error. Affirmed. A. W. Weeks, of Bonifay, for plaintiff in error. Rivers Buford, Atty. Gen., and M. C. McIntosh, Asst. Atty. Gen., for the State. PER CURIAM. This writ of error was taken to a judgment of conviction of the defendant of the statutory offense of deserting and withholding the means of support from his minor child. Section 5496, Rev. Gen. Stats. 1920. One of the issues was the defendant's paternity of the child, which was born seven months after the marriage of its mother and the defendant. If under the authority of Flores v. State, 72 Fla. 302, 73 South. 234, L. R. A. 1917B, 1143; Williams a new trial awarded, and plaintiff brings er v. State, 80 Fla. 286, 85 South. 917, it was ror. Affirmed. George A. De Cottes and Fred R. Wilson, both of Sanford, for plaintiff in error. Leitner & Leitner, of Arcadia, for defendant in error. WEST, J. This is an action to recover damages for personal injuries sustained by plaintiff while in defendant's employ and as a result of its alleged negligence. There was a verdict and judgment for plaintiff. Upon motion the verdict was set aside and a new trial awarded. To review this order "Court: The motion on the part of the de- writ of error was taken from this court. Fla.) HERRIN v. AVON MFG. CO. Errors are assigned upon (1) the trial may 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 granting defendant's motion for a new trial. The verdict was returned on February 7, 1923. Judgment was entered on the following day. During the same day, upon motion of counsel, defendant was allowed 15 days from the rendition of the verdict in which to present its motion for new trial. It is not disputed that the order extending the time for making and presenting the motion for new trial was made during the term in open court and within four days after the rendition of the verdict. [1] It is contended that the court should not have entertained the motion without notice to plaintiff, or his counsel, with an opportunity to be heard in opposition to it. There is nothing in the statute requiring notice of such application and "cause shown" Section 2811, to be given opposing counsel. Rev. Gen. Stat. Nor is there a rule of court requiring such notice. There is contained in the grounds of the motion for an extension of time a recital that it "is impossible to file said motion within four days" for the reason that the court reporter would not be able to transcribe his stenographic notes of the proceedings, with defendant's exceptions to rulings during the progress of the trial, within that time. The trial court considered the showing made sufficient under the statute, and accordingly made, the order extending the time for presenting the motion for new trial for 15 days from the rendition of the verdict. It is assumed that in the usual course of procedure notice of such application would be given opposing counsel, but the court may proceed to consider and act upon such application, although notice thereof [2] The motion for new trial was granted upon the ground that "the verdict is contrary to the law and evidence." Having been granted upon this ground, it is impossible to do more than speculate as to the specific considerations affecting the conclusion reached. The trend of the arguments in briefs of counsel suggests that the court may have regarded as unsatisfactory the evidence of defendant's alleged negligence as the proximate cause of plaintiff's injury, or may have entertained the view that under the evidence contributory negligence of plaintiff was proved. We express no opinion on either of these questions. They are vital points in the case, and the evidence does not palpably preponderate in favor of the verdict. The order of the trial court in granting the new trial is presumably proper. It does not affirmative. ly appear from the record that judicial discretion has been abused, resulting in injustice, or that any law has been violated in granting a new trial. Upon the authority of the following decisions, the granting of the motion for new trial was not reversible error: Cheney v. Roberts, 77 Fla. 324, 81 South. 475; Ruff v. G., S. & F. Ry. Co., 67 Fla. 224, 64 South. 782; Orchard v. C. H. & N. Ry. Co., 66 Fla. 353, 63 South. 717; Acosta v. Gingles, 65 Fla. 507, 62 South. 582; Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 South. 1; L. & N. R. R. Co. v. Wade, 49 Fla. 179, 38 South. 49. Affirmed. EAST COAST LUMBER CO., Plaintiff in Er- Axtell & Rinehart, of Jacksonville, for plaintiff in error. C. B. Peeler, of Jacksonville, for defendant in error. J. F. ANGE, Plaintiff in Error, v. STEPHENS (Supreme Court of Florida, Division B. April 12, 1924.) Error to Circuit Court, Orange County; J. J. Dickinson, Judge. Chas. P. Dickinson, of Orlando, for plaintiff in error. Massey & Warlow, of Orlando, for' defendant in error. PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the judgment herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said judgment. It is therefore considered, ordered, and adjudged by the court that the said judgment of the circuit court be and the same PER CURIAM. This cause having been heretofore submitted to the court upon the transcript of the record herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it appears to the court, upon due consideration, that the testimony does not clearly prove the damages in the amount awarded. It is therefore ordered and adjudged, if the plaintiff shall enter a remittitur, so that the judgment shall be for $4,214.42, with interest as stated in the verdict, the judgment shall stand affirmed for such $4,-is hereby affirmed. 214.42 and interest; otherwise, the judgment will stand reversed for a new trial. It is so ordered. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur. T. W. Lane, Plaintiff in Error, v. Jessie (Supreme Court of Florida, Division B. Error to Circuit Court, Hillsborough County; F. M. Robles, Judge. Shackleford & Shackleford and Hilton S. Hampton, all of Tampa, for plaintiff in error. A. B. McMullen and C. Edmund Worth, both of Tampa, for defendant in error. John BRAY and Eula Bray, Appellants, v. Mil. lie McCALDER, Administratrix of the Estate of Sam McCalder, alias Sam McKeller, Deceased, Appellee. (Supreme Court of Florida, Division B. April 12, 1924.) Appeal from Circuit Court, Santa Rosa County; A. G. Campbell, Judge. E. M. Magaha, of Ft. Myers, for appellants. PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the decree herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the judgment herein, and briefs and argument of counsel for the respective parties, and the record having been 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 error in the said judgment. It is therefore considered, ordered, and adjudged by the court that the said judgment of the circuit court be, and the same is hereby, affirmed. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur. ises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and adjudged by the court that the said decree of the circuit court be and the same is hereby affirmed. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur. (100 So.) NABORS et al. v. HOLLY BLUFF CONSOL- (No. 24112.) Neither the state nor any of its governmental subdivisions exercising such functions is subject to suit unless expressly or by necessary 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 underApril 28, 1924. Suggestion of Error Overruled June 2, 1924.) (Syllabus by the Court.) Schools and school districts standing that any rights they may have are not enforceable in the courts unless the law so authorizes. All contracts and undertak 114-Consoli-ings by the state or its governmental subdivisions are obligations of honor alone, and there is no remedy in the courts given the other party unless the law so provides either expressly or by necessary implication. Reversed, and judgment here for appellants. dated school district cannot be sued. Under the statutes of this state governing consolidated schools (chapter 124, Laws of 1910; chapter 182, Laws of 1914; chapter 224, Laws of 1914; chapter 180, Laws of 1916; chapter 194, Laws of 1916; Hemingway's Code, §§ 3999 to 4006, incl.), such schools are governmental subdivisions and agencies exercising governmental functions and cannot be sued unless there is some statute, either expressly or by necessary implication, authorizing them to be sued; and, there being no such statute, such schools cannot be sued. Appeal from Circuit Court, Yazoo County; W. H. Potter, Judge. Suit by one Smith and another against J. W. Nabors and others, trustees of the Holly Bluff Consolidated School District. From a judgment for plaintiffs, defendants appeal. Reversed, and judgment rendered. GROSS v. STATE. (No. 23900.) (Supreme Court of Mississippi, Division A. May 19, 1924.) (Syllabus by the Court.) 1. Husband and wife 3(2)-Husband cannot inflict corporal punishment on wife. The husband has no right under the law to inflict corporal punishment upon his wife, even for the purpose of correction when done in moderation. Montgomery & Montgomery, of Yazoo City, 2. Courts 100(1)-Common law on subject for appellants. Campbell & Campbell and E. L. Brown, all of Yazoo City, for appellees. remains as if case subsequently overruled had never been decided. 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 overruled the case so holding and held that such act did constitute a crime under the common law, the common law on the subject stands as if the first case had never been decided. ANDERSON, J. Appellees Smith and Strickland sued appellants J. W. Nabors, W. H. Yankee, and E. B. Crawford, trustees of Holly Bluff consolidated school district, in the circuit court of Yazoo county, and recovered a judgment from which appellants prosecuted this appeal. The controlling ques-County; R. L. Corban, Judge. Appeal from Circuit Court, Wilkinson Albert Gross was convicted of assault and battery committed on his wife, and he ap peals. Affirmed. Harry M. Bryan, Asst. Atty. Gen., for the State. tion is whether or not the trustees of a consolidated school district are subject to suit. Ayers v. Agricultural High School (Miss.) 98 South. 847, is controlling. What was said in that case with reference to the question D. C. Bramlette, of Woodville, for appelwhether an agricultural high school was sub-lant. ject to suit applies with equal force to a consolidated school district. The statutes covering the creation and management of consolidated school districts are silent as to whether such districts shall be subject to suit. Such authority is neither given expressly nor by implication. The statutes involved will be found embodied in chapter 124, Laws of 1910; chapter 180, Laws of 1916; chapter 194, Laws of 1916; chapter 182, Laws of 1914; chapter 224, Laws of 1914; Hemingway's Code, §§ 3999 to 4006, inclusive. ANDERSON, J. Appellant, Albert Gross, was indicted and convicted in the circuit court of Wilkinson county of the charge of an assault and battery committed upon his wife, and sentenced to pay a fine of $200 and to 60 days' imprisonment, from which Judgment he prosecutes this appeal. On the trial appellant requested instructions, which were refused by the court, to the effect that appellant had the right to chastise his wife in the form of corporal punishment provided it was done in moderation. A consolidated school district under our statutes, equally with an agricultural high school, is a governmental subdivision and agency exercising governmental functions. The assignment of error based on the refusal For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 SO.-12 |