Pearce & Son vs. Jordan.-Opinion of Court.

of evidence. 3d. That it is contrary to law. 4th. That it is contrary to the charge of the court." On the second trial, a verdict was rendered for one thousand, one hundred and thirty-three dollars and forty-one cents. The defendant moved to set aside this second verdict, on the same grounds as those alleged against the first verdict, but the motion was denied and judgment was accordingly entered up. from that judgment that this appeal is taken.

The assignment of errors in this court is as follows: "1st. That the court erred in refusing a new trial.

"2d. In admitting the testimony of witness Catur, so far as the same related to the admission of E. A. Pearce of the agency of T. M. Ellis.

"3d. In proceeding with the trial and rendering judgment on the verdict, when the several demurrers to pleas and replications were undisposed of."

The conclusion at which we have arrived upon a very careful examination of the whole record, renders it unnecessary that we should consider the first and second errors assigned; our attention therefore will be confined to the third and last. The error thus assigned is very fully sustained by the record. It is there made to appear that there was a demurrer to the second plea, and also a demurrer to the replication to the third plea. These two demurrers appear to have been standing open and undisposed of when the cause was submitted to the jury. Beside this, there was no issue joined on either of the three special pleas. Without undertaking to say how far the defendant may be considered as having waived the defences embraced in his special pleas, by consenting to go to trial before issue was properly joined, or the several demurrers were disposed of, it is very manifest that the state of the pleadings was well calculated to confuse the mind of the jury and to render it impossible that they should render an intelligent verdict.

Pearce & Son vs. Jordan.-Opinion of Court.

The marked and extraordinary discrepancy between the two verdicts, (especially when the grounds for setting aside the first verdict are considered,) affords ample proof of this, and we think that the cause of justice will be subserved by remanding the case for a new trial, when the pleadings can be properly made up and the issues be presented in an intelligible form.

In the case of McKinnon vs. McCullom, 6 Fla. R., 376, this court held that it was sufficient cause to reverse the judgment rendered in that case and remand the cause for a new trial, because it appeared that the trial was had while certain of the pleadings remained undisposed of. Whether the decision in that case is to be taken as the announcement of a rule of law of general application, or to be confined to the state of the pleadings as they were found to exist in that case, it is unnecessary to decide. We think, however, that it sustains the conclusion arrived at in this case.

By an agreement entered into between the counsel who argued the cause in this court, and of file, it was stipulated in substance, that should the court arrive at the conclusion that there was sufficient error to cause the judgment to be reversed, then they were requested to examine the evidence, and from it to determine the proper amount between the parties, and for which amount so to be found, a judgment was to be entered at the next term of the Circuit Court.

With a full appreciation of the motive which induced this agreement, and with every disposition to accommodate the parties in their laudable desire to end this controversy, we think it would be too great a departure from the line of our prescribed functions to comply with their request. The jurisdiction of the Supreme Court is "appellate only," and it is inadmissible for the Justices to sit as arbitrators between the parties to a cause. If it be desirable to dispense with a jury and to have the case investigated by the court, the

Ammons vs. The State.-Statement of Case.

parties will be afforded the opportunity (under the provisions of the statute,) when the case comes up on the new trial in the court below.

It is ordered that the judgment be reversed, the verdict set aside and a new trial granted, with leave to amend the pleadings in the court below. It is further ordered that each party shall pay his own costs accruing upon the taking and prosecuting of the appeal.

JOHN AMMONS, APPELLANT, VS. THE STATE OF FLORIDA.

1. Upon a change of venue in a criminal case, the transmission of the copy of proceedings, including the order for change of venue, accompanied with the original indicment and other necessary papers mentioned in the order (if any) of the court, prima facie satisfies the statute.

2. The making of the order changing the venue in such a case and adjourning the court without revoking it,vested,eo instanti, jurisdiction in the Circuit Court of the county to which the cause is forwarded. The jurisdiction cannot be in abeyance.

3. In all criminal cases, whether upon a change of venue or otherwise, the trial should be upon the original indictment, unless by some express act the court is authorized to use a copy thereof.

4. When the venue in a criminal case has been changed, the prisoner may raise the question of the sufficiency of the transcript from the court in which the indictment was found, and may require the production of all necessary papers not sent forward, and should not be forced to trial with them.

5. If a prisoner go to trial in such a case on an imperfect transcript, without objection, he waives all right to object in arrest of judgment.

attempt

6. Where in a criminal case there is conflicting evidence, and made on the trial of the cause to impeach a witness, which failed, the jury giving credit to the testimony of the witness, this court will not review their action.

7. The common law of England in relation to crimes is adopted and declared

Ammons vs. The State.-Statement of Case.

to be in full force in this State, excepting only so far as the same relates to the modes and degrees of punishment.

8. The record being in fieri and under the control of the court during the entire term, its completion at any time before the final judgment relates back and heals previous informalities.

This case was argued at Marianna and decided at Tallahassee.

The following statement of the case was prepared by the Judge who delivered the opinion of the court:

John Ammons, the appellant, was indicted at the Fall Term, 1858, of the Circuit Court of Holmes county, for the murder of one Samuel McQuage. The record sets forth that on the 3d November, 1858, the Grand Jury of Holmes county came into court and presented the bill of indictment, a copy of which is given in the record, and upon inspection of the original indictment presented by prisoner's counsel in argument, it appears to have been filed by the clerk of said court on that day. Afterwards, on the application of the prisoner, a change of venue was granted by the court to Jackson county, the order for which reads as follows, viz: "It appearing to the court upon the affidavit of the prisoner that he fears he cannot have a fair and impartial trial in the county of Holmes, on account of the prejudice existing against him, it is ordered that the venue in this case be changed to the Circuit Court of the county of Jackson, to be begun and held at Marianna on the second Monday of the present month. It is further ordered that all the witnesses for both the prosecution and defence, be recognized to be and appear at said Circuit Court of Jackson county on Tuesday of the second week of the term thereof, to testify in said case, and not depart without leave of said court. It is further ordered that the clerk of this court do transmit to the clerk of the Circuit Court of Jackson county the indictment and all the original papers

Ammons vs. The State.-Statement of Case.

in this prosecution on file in his office, together with a copy of all the recognizances of the witnesses recognized to appear and testify in this case. And it is further ordered that the Sheriff of the county of Holmes do safely convey the prisoner to the jail of the said county of Jackson, and there deliver him to the Sheriff of the said county of Jackson, to be safely confined in said jail."

In pursuance with this order, the clerk of the Circuit Court of Holmes, sent forward to the clerk of said court in Jackson county a transcript as ordered and the original indictment. No copy of the indictment was included in the transcript of the record. At said term of the court in Jackson county, it appears by the record the prisoner was arraigned and plead not guilty, and upon his motion, supported by affidavit, the cause was continued.

At the July Term, 1859, the trial was continued on motion of prisoner.

Fall Term, 1859, the prisoner was put upon his trial and a verdict of guilty rendered. The prisoner moved for a new trial, which was granted.

At Spring Term, 1860, prisoner made motion to amend the record so as to show that the said verdict was set aside and new trial granted upon other grounds than those embodied by prisoner in his motion for new trial, which motion was refused by the court and excepted to. The cause was then called for second trial, and on hearing the indictment read, the prisoner pleaded former conviction, to which plea the State replied that the new trial was awarded the prisoner on his own motion, and the prisoner demurred to the replication, which demurrer was overruled, and the prisoner permitted to join issue upon the said replication; whereupon a jury was empanelled to try the issue thus joined, and returned as their verdict that said new trial was awarded the prisoner on his motion.