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semblage should have in the form of resolution or motion been adopted by the elec- EAST COAST LUMBER CO. V. WALTER tors present."

WALTON CO. By unanimously voting at the meeting of (Supreme Court of Florida, Division B. April March 26th to organize a municipal government-which meeting was participated in

4, 1924.) by 47 of the registered voters of the terri

(Syllabus by Editorial Staff.) tory proposed to be incorporated-by se Appeal and error 364 -Writ of error made lecting a name and seal, by determining the returnable more than 90 days from its date corporate limits of the proposed town, and will be dismissed. electing municipal officers at the meeting of A writ of error made returnable more than April 30th, the qualified voters present clear- 90 days from the date thereof is in violation ly expressed their intention to organize the of Rev. Gen. St. 1920, $ 2908, and will be distown.

missed. [4] The next attack is that the boundaries of the town as adopted at the meeting and M. F. Horne, Judge.

Error to Circuit Court, Columbia County, recorded in the office of the clerk of the circuit court are vague, indefinite, and un

Proceeding between the East Coast Lumber certain.

Company and the Walter Walton Company. We think the description comes within Judgment for the latter, and the former the rule laid down by this court in Town of brings error. Dismissed. Enterprise v. State, 29 Fla. 128, 10 South. Tribble & Huntley, of Lake City, for plain740; Lane v. State, 63 Fla. 220, 57 South. tiff in error. 662, and that the description of the terri. W. H. Wilson, of Lake City, for defendant tory incorporated “is not so uncertain as to in error. make it impossible to determine the terri. tory intended to be included in the munici

PER CURIAM. The writ of error herein pality,” and, where such is the case, “the was dated and recorded June 9, 1923, and law is not void for uncertainty of descrip made returnable to this court on September tion."

10, 1923, which return day, being "more than The contention of the plaintiff in error ninety days from the date of the writ,” is in that the answer does not give the names of violation of the statute (section 2908, Rev. the 47 registered voters who took part in the Gen. Stats. 1920), and the writ of error is organization of the city, and does not al- dismissed. Anderson v. State, 73 Fla. 86, 74 lege that they were registered voters, or

South. 6; Gadsden v. State, 76 Fla. 543, 80 that they constituted two-thirds of those re- South. 308; Robinson Imp. Co. v. Jackson, siding within the territory proposed to be 55 Hla. 657, 45 South. 987; Ates v. Langley, incorporated, or that no less than 25 in- 61 Fla. 504, 54 South. 264; Ayers v. Daniels, habitants of the territory proposed to be in. 67 Fla. 482, 65 South. 660.

Dismissed. corporated possessed the qualifications prescribed in the statutes of Florida participat- WHITFIELD, P. J., and WEST and TERed in the meeting, is without merit.

RELL, JJ., concur. There is nothing in the statutes that requires, either directly or by implication, that the names of the registered voters who take part in the organization of a town shall ap

SMITH V. STATE. pear in the proceedings of the meeting. The allegations of the answer with re

(Supreme Court of Florida, Division A. May

21, 1924.) spect to those who took part in the meeting, although not in the words used by the plain

(Syllabus by the Court.) tiff in error, clearly show that the necessary | 1. Mayhem Emo 5-Specific intent required to 25 registered voters were there, and that make act offense not presumed from doing they constituted two-thirds of those residing

of act. within the territory proposed to be incor

Where a specific intent is required to make porated.

an act an offense, the doing of the act does not We have carefully considered all the ques. raise a presumption that it was done with the tions raised by the plaintiff in error and

specific intent. fail to find anything in the proceedings as 2. Criminal law 24, 328–Rule as to pre. shown by the record that warrant us in

sumption of criminal intent from commission reversing the judgment of the lower court.

of unlawful act not applicable to crime for

which specific intent necessary; burden on The judgment is affirmed.

state to prove specific intent necessary to

make act an offense. TAYLOR, C. J., and ELLIS, J., concur. WHITFIELD, P. J., and WEST and TER- arise from proof of the commission of an un

A presumption of a criminal intention may RELL, JJ., concur in the opinion.

lawful act, but the general rule that, if it is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.) proved that the accused committed the unlaw [1, 2] In Simpson v. State, 81 Fa. 292, 87 ful act charged, it will be presumed that the South. 920, the rule is thus stated : act was done with a criminal intention, does not apply in the case of crimes like burglary, arise from proof of the commission of an un

"A presumption of a criminal intention may assault with intent to kill, or rape, for which a specific intent is necessary.

Here the burden lawful act, but the general rule, that if it is is on the state to prove affirmatively, either by proved that the accused committed the unlawdirect or circumstantial evidence, that the act ful act charged, it will be presumed that the

act was done with a criminal intention, does was done with the requisite specific intent.

not apply in the case of crimes like burglary, West, J., dissenting.

asasult with intent to kill, or rape, for which a

specific intent is necessary. Here the burden Error to Circuit Court, Volusia County; is on the state to prove affirmatively either by.

direct or circumstantial evidence that the act James W. Perkins, Judge.

was done with the requisite specific intent. James Garfield Smith was convicted of “Where a specific intent is required to make assaulting his wife with malicious intent to an act an offense, the doing of the act does maim and disfigure her, and he brings error. not raise a presumption that it was done with Reversed.

that specific intent."
Stewart & Stewart, of De Land, for plain See Davis v. State, 22 Ma. 633; Clark v.
tiff in error,

State, 56 Fla. 46, 47 South, 481; Simpson v.
Rivers Buford, Atty. Gen., and J. B. State, 81 Fla, 292, 87 South. 920.
Gaines, Asst. Atty. Gen., for the State.

There being no evidence to sustain the ver

dict, the judgment is reversed. BROWNE, J. The plaintiff in error was

TAYLOR, C. J., and ELLIS, J., concur. convicted of assaulting his wife, Maud Smith,

WHITFIELD, P. J., and TERRELL, J., with his fist, and striking out and destroying concar in the opinion. her right eye, with malicious intent to maim and disfigure her.

WEST, J. (dissenting). Intent is an eleThe evidence is undisputed that, on the ment of many crimes. Of necessity, if not afternoon of the 10th of August, Smith was confessed, it must be proved by circumintoxicated from drinking shine, and that he stances. The court seems to hold in this and his wife "were fussing and one word case that the act of the accused in paying brought on another," and he struck her in the doctor's bill and for an artificial eye the face with his fist, causing an injury to for his wife after destroying the natural one her eye which necessitated its being removed tends to negative malicious intent and to

It appears from the record that they had exculpate him. This does not appeal to me not bad any previous quarrels, nor was there as sound. Nor does the fact that there is any ill feeling between them. Smith paid the no evidence that he had previously gone on doctor's bills and for an artificial eye for a similar rampage and knocked out the oth

She made no complaint against him, er eye, or otherwise maimed her, tend to and they lived together as man and wife negative the alleged malicious intent. It from the time of the injury until after his in- seems to me that there is not in this recdictment on the 22d of the following Novem- ord such absence of proof of malicious inber.

tent as to require a reversal.
These facts fail to establish malicious in-
tent on the part of the plaintiff in error to
maim and disfigure bis wife by putting out
and destroying her eye, as charged in the in-

DAVIS V. STATE.
dictment, and no evidence was adduced from
which such malicious intent could reasonably

(Suprem Court of Florida, Division A. May have been presumed.

21, 1924. Rehearing Denied June

18, 1924.)
The rule is thus stated in Lawson on Pre-
sumptive Evidence, p. 331:

(Syllabus by the Court.)
"Where a specific intent is required to make 1. Criminal law Om 1084—Writ of error oper.
an act an offense, the doing of the act does not

ates as supersedeas on giving of statutory raise a presumption that it was done with the bond. specific intent."

When a writ of error is taken to a judge

ment in a criminal case, it is the writ which See, also, People v. Plath, 100 N. Y. 590, operates as a supersedeas upon a bond being 3 N. E. 790, 53 Am. Rep. 236; Roberts v. given as the statute requires. People, 19 Mich. 401.

2. Criminal law am I 178–Assignments of error In 16 C. J. 995, we find:

not argued will not be considered on appeal. "The burden is on the state to prove that the When there are several assignments of eraccused had the specific intent involved in the ror and only one is argued, those which are charge, or to show facts from which it may be not argued will not be considered by the approred."

pellate court. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

her.

3. Criminal law 753(2)-Defendant not en- , issued upon that date and returnable to this titled, as of right, to instruction to acquit. court upon the 21st of April, 1924.

The defendant is not entitled, as of right, In approving the supersedeas bond the to an instruction to the jury to return a verdict statute (section 6152, Revised General Statof acquittal.

utes), was ignored, In that the affidavits of 4. Receiving stolen goods 8(3)-Evidence the sureties did not contain any description held sufficient to sustain conviction.

of their real property. Evidence examined and found sufficient to [1] It is the writ of error and not the support the verdict of receiving stolen property bond which operates as a supersedeas, alknowing it to have been stolen.

though a bond is required to be given in con

formity with the purisions of the statute Error to Circuit Court, Polk County ; John before the writ of error so operates. See S. Edwards, Judge.

sections 6151, 6152, Revised General Stat. Harold Davis was convicted of receiving utes. stolen property, and he brings error. Af. The record does not show whether during firmed.

the period of two years and four months Wilson & Boswell, of Bartow, for plaintiff which elapsed between the date of the senin error.

tence and the suing out of the writ of error Rivers Buford, Atty. Gen., and J. B. the defendant has been in confinement or not. Gaines, Asst. Atty. Gen., for the State.

If he has not, that fact is a matter for con

sideration by the executive department and ELLIS, J. In October, 1921, the plaintiff

not the judicial.

[2] The motion for a new trial contained in error was indicted for the larceny of a Ford automobile, the property of Mrs. W. many grounds, and so does the assignment 0. Pearce, and for receiving the stolen ma- of errors relied upon for the reversal of the chine knowing the same to have been stolen. judgment, but only one is discussed in the The date of the alleged theft was August

brief of counsel for the plaintiff in error, 14, 1921. The defendant was put upon trial and that one is that the verdict was conon November 23, 1921. Upon motion the trary to the evidence.

It is therefore the only one which will be state attorney elected to prosecute upon the second count, which charged the defendant considered. See Williams v. State, 25 Fla. with receiving the stolen property knowing 734, 6 South. 831, 6 L R A, 821; Holland it to have been stolen. There was a verdict v. State, 39 Fla. 178, 22 South. 298; Lamb of guilty as charged in the second count. v. State, 50 Fla. 106, 38 South. 906; Thomas The defendant was sentenced on the 29th of v. State, 36 Fla. 109, 18 South. 331; Mathis November, 1921, according to the record, v. State, 45 Fla. 46, 34 South. 287. but according to the bill of exceptions he

There were no errors in the trial of the was sentenced on the 25th of November.

case, which were the subject of any assignNinety days were allowed in which to ment not discussed, so glaring that this court make up and tender a bill of exceptions. A would be required under the rule to reverse motion for a new trial was overruled on the case sua sponte. November 29, 1921. The bill of exceptions

It is unnecessary to discuss the evidence in was presented on February 22, 1922, and full. The evidence for the state tended to signed on the 28th of that month. The bill show that Mrs. Pearce was the owner of an of exceptions is not in narrative form; the automobile; the engine number was 4891886. testimony being set out in the form of ques. It was of the type called a Ford. It was tions and answers under the certificate of stolen on Sunday night, August 14, 1921, and the judge that it was necessary to be pre later, on about the 31st of August, it was sented in that form to be clearly understood. found in the defendant's possession. It was It contains a large proportion of irrelevant identified as the property of Mrs. Pearce, aland immaterial statements of fact.

though the top and tires had been changed, The record proper states that the motion the spot light removed, and the number of for a new trial was overruled and sentenced the engine changed from 4891886 to 4884886; imposed on the 29th of November. The bill the 9 having been changed to the figure 8 of exceptions states that the motion for a and the figure 1 to the figure 4. The alternew trial was overruled and supersedeas ation was crudely done and easily detected. bond fixed at the sum of $5,000 on Novem- The spot light and tires were also found in ber 25, 1921. The supersedeas bond was giv- the defendant's possession. This evidence en and approved on the last-mentioned date. practically constituted the case as presented

On the 15th of March, 1924, more than two by the state. years and four months after the trial and [3] A motion to direct a verdict of not sentence and the filing of the "supersedeas guilty was denied. This was not error. bond,” the attorneys for the defendant filed There is no rule requiring a motion of that their præcipe for a writ of error, which was character in a criminal case to be granted.

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

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(100 So.) See Brantley v. State, 84 Fla. 649, 94 South. 878; Tucker v. State (Fla.) 96 South. 10. DAVIS V. AMERICAN AGRICULTURAL

CHEMICAL CO. [4] If there was any doubt as to the sufficiency of the evidence as adduced by the (Supreme Court of Florida. May 29, 1924.) state to support a verdict of guilty upon the second count of the indictment, the consid

(Syllabus by the Court.) eration of the entire evidence removes such Agriculture 7 - Rules of pleading applicadoubt, and is quite sufficient to support the ble to vendors of fertilizers. verdict.

While the manufacturers and vendors of The evidence offered in behalf of the de- fertilizers should be held to a compliance with fendant tended to show that he knew on the the obligations imposed upon them by law, they night of August 14, 1921, that Mrs. Pearce's have a right to demand that a cause of action automobile had been stolen.

be stated in due course of law against them The defend

before they are required to take issue on the ant himself testified that on August 16th, facts. Stevens v. Independent Fertilizer Co., Tuesday morning following, he exchanged a 73 Fla. 1050, 75 South. 539. Buick car, which he had bought the day before from a man giving his name as J. C. 2. Bills and notes m476(1)–Plea of want of

consideration, merely averring that note was Edwards, for the Ford automobile. The ex

without consideration, insufficient. change was made with the same person from

In an action upon a promissory note, a whom the defendant had purchased the plea of want of consideration, which merely Buick the day before. The defendant had avers that there was no consideration for the not seen the person before nor has he seen note, is insufficient because it amounts to a him since. The reason for the exchange of plea of the general issue, which is forbidden the Buick for the Ford, as given by the de- in an action of this kind. Forbes v. Ft. Laufendant, was that Edwards said "there was

derdale Merc, Co., 83 Fla. 66, 90 South. 821. something wrong with the title" to the Buick.

Error to Circuit Court, Polk County; John
The defendant changed the tires on the Ford

S. Edwards, Judge,
and removed the spot light. He drove the
Ford to Tampa on Wednesday morning. On

Proceeding between J. R. Davis and the
Friday following he drove the car to Miami American Agricultural Chemical Company.
and then to West Palm Beach. He adver- | Judgment for the latter, and the former
tised it for sale in Miami; then came to brings error. Affirmed.
West Palm Beach, advertised it for sale J. W. Brady, of Bartow, for plaintiff in er-
there, left it in that city for sale, and came ror.
back to his home in another car which he Landis, Fish & Hull and Erskine W. Lan-
had taken with him to the East Coast for dis, all of De Land, for defendant in error.
the purpose of trading for a “speed boat.”
Failing to make the trade of that car for WEST, J. This is an action on several
the speed boat he returned in it, leaving the promissory notes. The declaration is in the
Ford in West Palm Beach for sale.

usual form, declaring on each note in sepThere was other evidence consisting of arate counts. Originally it contained several statements by the defendant in their nature common counts, but as to these the action esculpatory and that of other witnesses tend- wes dismissed by plaintiff. The original ing to corroborate such statements of the pleas of defendant were held bad on demur. defendant concerning the open, artless, un

Thereafter amended pleas were filed. designing use of the Ford automobile. He Demurrers to these pleas were also sustained. drove it about the streets of the town in the Defendant declined to plead further, and updaytime, openly offered it for sale in two on proof being filed final judgment was endistant cities, but the numbers had been tered by the court in favor of plaintiff. De changed, the top exchanged for another, and fendant took writ of error. The order susthe spot light removed and tires changed. taining the demurrer to defendant's amended The Ford had been disguised, and, according pleas is assigned as error. In the brief on to a witness who was a dealer in second behalf of plaintiff in error, who was defendband cars, such disguises are often resorted ant below, it is stated that the only question to effectively to prevent prospective purchas- presented is whether there is error in the ers from recognizing the old car of their orders sustaining plaintiff's demurrer to the friends or acquaintances.

pleas of defendant. We are not prepared to state that the evi

[1] The second amended plea admits dedence considered in its entirety was insuffi- fendant's liability upon one of the notes cient to support the verdict; so the judg-sued on, and plaintiff's right to recover ment is aflirmed.

the amount of this note, but, with respect to

the other notes, it is averred, in substance, TAYLOR, C. J., and BROWNE, J., concur. that they were for commercial fertilizer, de WHITFIELD, P. J., and WEST and TER- livered to defendant by plaintiff from time RELL, JJ., concur in the opinion.

to time as his needs required, sold under a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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guarantee that one lot of the fertilizer so de- , worthless, and defendant received no bene livered contained certain specified constituent fits whatever from the same, and that by reaelements, that another lot contained certain son thereof this defendant sustained a loss other specified constituent elements, and that in his cropping operations to the amount the remaining quantity contained certain spe- of $25,000, which he prays may be allowed cified constituent elements; that as, to each as a counterclaim against plaintiff's suit by of said lots plaintiff guaranteed that the way of recoupment.” ammonia "was derived from fish, blood and [2] The defense relied on is failure of bone, and nitrate of soda," and that defend consideration for the notes sued on. ant, relying upon the guarantee of plaintiff In Stevens v. Independent Fertilizer Co., as to said constituent elements of the vari- 73 Fla, 1050, 75 South. 539, it was held thatous lots of fertilizer, applied the same to the purposes for which such fertilizers were pur

"An allegation that upon the certificate of chased; "that at the time of receiving and analysis the plaintiffs found it to be deficient using said fertilizers he had no means of and adulterated is not a positive and direct knowing that the said various shipments dia allegation of a fact that is essential to a re

covery." not contain the constituent elements above described which had been guaranteed by the plaintiff, but it developed that none of said

In the case under consideration the plea îertilizers contained the constituent elements avers that "it developed” that none of said in quantity and quality as guaranteed by the fertilizers contained the constituent elements plaintiff, and that the ammonia used by the in quantity and quality as guaranteed.

In plaintiff in the preparation of said fertilizers Stevens v. Independent Fertilizer Co., supra, was not derived from fish, blood and bone, it was held thatand nitrate of soda, but was derived from inferior and worthless sources, whereby said deficiencies should have reference approrimate

"The allegations as to the adulterations and fertilizer proved to be wholly worthless and ly at least to the time of delivery of the fordefendant received no benefit from the same." tilizers.

The guaranteed analysis relates to Whereby it is averred that there was a total the constituent elements of the fertilizer at the failure of consideration for which said notes time of its delivery." (Italics supplied.) were given.

The third amended plea avers the consideration for the notes sued on to be certain averment in the pleas of the time when “it

In the case under consideration there is no commercial fertilizer delivered to the defendant by plaintiff, sold under a guarantee by developed" that the fertilizers received were plnintiff that the several quantities of ferti- deficient in constituent elements, or that the lizer were made in accordance with certain ammonia contained in such fertilizers was deformulas and contained certain specified rived from inferior and worthless sources. constituent elements; that plaintiff guaran

Tested by the rules announced by this teed that the ammonia used in all the ferti- court, the pleas were subject to demurrer lizer so delivered was derived “from fish, upon the ground that they set up no defense blood and bone, and nitrate of soda"; that,

to the action. A general averment in a relying upon the garantee as to said constitu- plea to an action on a promissory note, that ent elements, defendant applied said fertiliz- the note was without consideration, is not er to the purposes for which it was intended; suficient. It is necessary that the facts or "that at the time of receiving and using said circumstances connected with the transacfertilizers he had no means of knowing that tion, necessary to apprise plaintiff of the spe the said various shipments did not contain cific nature and character of the defense the constituent elements above described, which he will be required to meet, be averred. which had been guaranteed by the plaintiff, Forbes v. Ft. Lauderdale Merc. Co., 83 Fla. but it developed that none of said fertilizers 66, 90 South. 821; Ahren & Hyer v. Willis, contained the constituent elements in quan

6 Fla. 359. tity and quality as guaranteed by the

The order sustaining demurrer to the pleas plaintiff, and that the ammonia used by the is not erroneous. plaintiff in the preparation of said fertilizers The judgment is affirmed. in all three of the formulas, which the plaintiff guaranteed, was not derived from fish, WHITFIELD, P. J., and TERRELL, J., blood and bone, and nitrate of soda, but was derived from inferior and worthless sources, TAYLOR, C. J., and ELLIS and BROWNE, whereby said fertilizers proved to be wholly JJ., concur in the opinion.

concur.

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