The Key West Citizen Newspaper, September 7, 1939, Page 7

untarily had and wf the without leave of court first absent him: e court, the re rdict of the jury in said 1 not thereby be postponed said trial, th prese Reduction Prisoner any to the, has been com- ires to be brought » the end of be _indicte: term isfaction of court Dp! imprison t or prevented by ed no pleadin tinuance. to Speedy prosecutions endant sh tri Definition 1 within the chapter is the pos of thi f for any per od plication of s own motion n for good cz for The the and defendant, shall be ac- certificate of the ade in good faith worn to by the appli- Application for Contin- b nce on. ce of the s is ab- and resid fe cuitnd xpected to be prov- of the merely ts to be nnot be ble wit- stimony erial and not fe ess is legal resi- that due dili- been used to obtain the i that a service of a witness has been a reasonable time witness could not but showing that able the appli- to procure ata ab- con- ctly not ent he € n the wit- of the bsence is tem- and when he of interroga- ypounded to such ab- d a request that a issued to take the witness, if the nt s will be pres time, not late rm of court, or the will be obtained (if defendant) positions. (a) At ndant is bound over including day di upon indictment he satisfy court by his oat 7 the affidavits of imony of aterial and ne a such witness sdiction of the r attendance can me or the regular or special h the cast may be tried, upon the proper applica- ecused, or his attorni of the interrogatories ded to such absent order that a com- to take the de- of such witnesses to be used fendant desires to per- timony of a witn same preoeedings as set forth in nereof: with the excep- that the testimony be taken bef e issuing made by application to him e may be made in V s interm, but in due notice of the application all be given to the prosecuting at- Such commission shall be at a time to be fixed by the cept as otherwise provided, governing the filing of in- atories and cross-interroga- the objections and except the ing, execution and amission, and the ne depositions in civil all be observed in criminal Il be used or the attend- itmesses can be pro- cured. and if it shall appear to the court that any person whose de- has been taken, has himself by the pro- inducement. or threats of the accused, or of any person on his behalf. such depositions shall not be read to the jury. 200. Hearing and Action Thereon. The party applying for @ continuance may file affidavits in support of his application, and the adverse party may, except as to the facts expected to be proved by the curement witness, thereupon file counter-affi- davits. The court in its discretion may require additional affidavits or counter-aflidavits and shall either grant or refuse the application after considering the allegations thereof and any affidavits or counter-affi- s that may be filed. 201. Time for Continuance. tinuance shall be granted for longer time than the ends of justice quire. . 202. Continuance Where Sev- Defendants. Where there are veral »defendants and a continu- ance is granted on the application of one Or more but not all defendants, e trial of the other defendants shall proceed unless the court or- ders otherwise. CHAPTER 17. Proceeding to Deter- mine Mental Condition of Defendant. 203. Examination of Defend- nt’s Mental Condition to Determine Whether He Shall Be Tried. (1) If before or during trial the court, of s own motion, or upon motion of for the defendant, has rea- » ground to believe that the ant is insane, the court shall immediately fix a time for a hearing to determine the defendant's mental condition. The Court ‘may appoint two disinterested qulaified experts to examine the defendant and to tes- tify at the hearing as to his mental Other evidence regard- thé defendant's mental condi- may be introduced at the hear- by either party. (2) If the court, after the hearing, decides that the defendant 8 d with the trial. If, ides that the defend- hall take proper fendant commit- i eps to have the d H If the the proper institution. is declared insane, during trial, and afterwards rele the ‘institution to which he has n committed, as sane, his former uncompleted trial shall ‘not consti- tute former jeopardy. If, after a de- ndant been committed to an itution as insane, the proper of- ficer of such institution is of the op- inion that the defendant is sane, he shall report this fact to the court which conducted the hearing. If the officer so reports, the court shall fix a time for a hearing to deter- mine whether the defendant is sane. This hearing shall be conduc! in all respects like the original hearing to determine defendant's sanity. If found sane, the trial shall proceed: if found insane, he shall again be recommitted as _ hereinabove — set forth. No defendant committed by a court to an institution, by reason th mination referred to in aragraph, shall be released rom, without the consent of the t committing him. Appointment of Expert by Court. Whenever on prosecution by indictment or in- formation the existence of insanity on the part of the defendant at the time of the alleged commission of the offense charged becomes an is- in the’ cause, the court may ap- point one or more disinterested qual- ified experts, not exceeding three, to examaine the defendant. If the court does so, the clerk shall notify the prosecuting attorney and counsel for the defendant of such appoi ment and shall give the names and addresses of the experts so appoint- ed. If the defnedant is at large on bail, the court in it cretion may commit him to custody pending the examination by such experts. The appointment of experts by the court shall not preclude the State or de- fendant from calling expert witne es to testify at the trial and in case the defendant is committed to cus- tody by the court they shall be per- mitted to have free s to the de- fendant for purposes of examination or observation. The experts appoint- ed by the court shall be summoned to testify at the trial and shall be mined by the court and may be amined by counsel for the State and the defendant. Sec. 205. Fees for Expert Wit- nesses. When expert witn es are appointed by the court they shall be allowed such fees as the court in its discretion deems reasonable, hav- ing regard to the s 3 performed by the witne: The fees so al- lowea shall be paid by the county where the indictment was found or the information ‘filed. Such fees to be taxed as costs in the case. ‘HAPTER 18. Conduct of Trial. 206. Defendant at Large on Bail Appearing for Trial May be Committed to Custody. The court in its discretion any time after a defen- dant who is at large on bail ap- pears for trial, may commit him to the custody of the proper official to abide the judgment, sentence and any further order of the court. Sec. 207. Trial Where Joint De- fendants. When two or more defen- dants are jointly charged with an off whether felony or misde- m . they shall be tried jointly, unless the court in its discretion on the motion of the prosecuting attor- or any defendant, order: In ordering se Ss. urt may order that one more defendants be each sep- arately tried and the othe tried or may order that seve fendants be jointly tried in one trial and the others jointly tried in 2 other trial or trials, or may : each defendant be se the or 208. Procedure, where fense Committed Outside State. the jury is discharged on the ground that the court is, without jurisdiction it appears that the offense ed was committed outside this state. the court may order the de- fendant to be discharged or may di- rect that a communication be sent by the cl of the court to the chief executive officer of the state, territory or district where the of- fense was committed and may com- mit the defendant to custody or ad- mit him to bail, for such time as it deems reasonable, to await a req- uisition for his extradition to such state, territory or district. If no requisition is made within the time set by the court the defendant shall be discharged, and if he has been admitted to bail, the court shall or- der that the surety or the defendant as the case may be, be exonerated from liability on his ‘undertaking, or if money or bonds have been depos- ited as bail, that such money or bonds be returned. Sec. 209. Procedure Where Offense Committed in Another County. If the jury is discharged on ground that the court is without jurisdiction of the offense charged because it ap- pears that it was committed in an- other county of this State and that the court is not empowered by this Code to try such offense, the Court shall commit the defendant to cus- tody or admit him to bail, for such time as it deems reasonable, to await a warrant for his arrest from the proper county. The clerk of the court shall forthwith give notice to the prosecuting attorney of the proper county that the defendant has been so committed to custody or admitted to bail. If the defendant is not ar- rested on a warrant from the proper county within the time set by the court. he shall be discharged, and if he has been admitted to bail, the court shall order that the surety or the defendant, as the case may be. ed from liability on his g. or if money or bonds deposited as- bail, that such money or bonds be returned. Sec. 210. View by Jury. When, in the opinion of the court, it is prop- er that the jury should view the place where the offense appears to have been committed, or, where any other materiat fact appears to have it may order the jury, in cer, to be conducted in a y place; and the officer shall be ad- monished to permit no person to speak to or otherwise communicate with the jury, nor to do so himself, on any subject connected with the y order trial. and to return them into the courtroom without unnecessary de- lay, or at a specified time. The trial judge and defendant shall be present, unless defendant absents himself without permission of the court, and the prosecuting attor- and counsel for the defendant be prseent at the view of the Sec. 211. Separation and Detention of Jurors—Admonition by Court. The court in its discretion may di- rect that the jurors, when they leave the jury bex at any time before the cause is finally submitted to them, be permitted to separate or be kept together in charge of a proper officer. In either event the court shall ad- monish them that it is their duty not to converse among themselves, or with any one else, on any sub- ject connected with the trial, or to form or express any opinion there- on until the cause is finally sub- mitted to them. If the court permits the jurors to separate it shall also admonish the jurors not to view the place where the offense appears to have been committed. Sec, 212. Admonition to Officer in Charge of Jurors. If the jurors are committed to the charge of an officer he shall be admonished by the court to keep the jurors together in the place specified by the court and not to permit any person to speak to or otherwise communicate with them on any subject except with the per- mission of the court, given in open court, in the presence of the defen- dant or his counsel. ich officer shall not communicate with the jur- ors on any subject connected with the trial, and under the direction of the court, shall return the jurors to court when ordered so to do. Sec. 213. Directing Acquittal of d Defendant. (1) If, at the close of the evidence for the state or at the cl of all the evidence in the cause, the court is of the opinion that the evi- dence is insufficient to warrant a conviction, it may and on the mo- tion of the prosecutine attorney or the defendant, shall, direct the jury to acquit the defendant. (2) A motion for directed verdict is not waived by subsequent intro- duction of evidence on behalf of de- fendant, but after introduction of evidence by defendant, the motion for directed verdict must be renew- ed at the close of all the evidence. Such motion must fully set forth the grounds upon which it is based. Sec. 214. Accused May Make Him- self a Witness. In all criminal pros- ecutions the accused may at his op- tion, be sworn as a_ witness in hi own behalf, and shall in such case be subject to examination as other witnesses, but no accussed person shall be compelled to give testimony against himself, nor shall any prose- cuting attorney be permitted before the jury or court to comment on the failure of the accussed to testify in his own behalf, and a defendant of- fering no testimony in his own be- half, except his own, shall be en- titled to the concluding argument before the jury. . Sec. 215. Charge to Jury. (1) The presiding judge shall charge the jury only upon the law of the case at the conclusion of the argument of coun- sel. (2) Every charge to a jury shall be orally delivered, and charges in capital cases shall also be in writ- ing. Charges in other than capital cases shall be taken by the court reporter and transcribed by him and filed in the cause. (3) At the close of the evidence, or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Tho court shall inform a counsel of its proposed action upon the requests prior to their arguments to the jury. (4) No party may assign as error or grounds of appeal, the giving or the failure to give instruction, un- less he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection dut of the hearing of the jury. CHAPTER 19. Conduct of Jury. Sec. 216. Regulation of Jury. (a) After the jury shall have been sworn they shall sit together and hear the proofs and allegations in the case, which shall be delivered in public in the presence of the accused; and after hearing such proofs and alle- gations the jury shall be kept to- gether in some convenient place un- til they agree upon a verdict or are discharged by the court, and the sheriff or a bailiff shall be sworn to take charge of the jury. (b) After the cause has been fully submitted the jurors shall retire to the place provided for them and «on- sider their verdict. When the court directs a verdict of acquittal the jurors shall declare their verdict in open court by having one of their numbers sign, as foreman, a verdict prepared by the clerk of the court in accordance wtih the court's instruc- tion. (c) The sheriff when required by of the court: shall provide juries with meals and lodging, the expenses to be taxed against and paid by the State. Sec. 217. Separation of Jurors After Submission of Cause. Unless the jurors have been kept together ring the trial the court may, in its discretion, after the final submis- sion of the cause, order that_ the jurors may separate for a definite time to be fixed by the court and then reconvene in the court-room before retiring for consideration of their verdict. Sec. 218. Selection of a Foreman. The court shall instruct the jurors to select one of their number fore- man, or the court may appoint one of the jurors foreman provided such appointment be made by the court before any testimony is taken in the cause. Sec. 219. What Jurors May Have With Them. Upon retiring for de- liberation the jurors may, if the court permits, take or later have sent to them: (a) Forms of verdict approved to D; court, after being first submitted to counsel. (>) Any written instructions given; but if any such instruction is taken or sent all the instructions shall be taken or sent. (c) All things received in evidence, other than depositions. If the thing received in evidence is a public rec- ord or a private document which in the opinion of the court, ought not to be taken from the person having it in custody, a copy shall be taken or sent instead of the original. Sec. 220. Jurors May Return Into Courtroom for Instruction. After the jurors have retired to consider their verdict if they desire additional instruction upon any point of law arising in the cause or to have any testimony, about which they are in doubt or disagreement, read to them, they shall, upon request, be conduct- ‘ed into the court room by the officer who has them in charge and there the court shall give them such ad- ditional instruction or shall order such testimony read to them. Such instruction may be given and such testimony read only after notice to the prosecuting attorney and to coun- sel for the defendant. Sec. 221. Court May Recall Jurors for Supplemental Instructions, The court may~recall the jurors after they have retired to consider their verdict to give them additional in- structions or to correct any erron- eous instruction it has given them. Such additional or corrective instruc- tions may be given only after notice to the prosecuting attorney and to counsel for the defendant. Sec. 122. After the jurors have re- tired ‘to consider their verdict the court shall not recall the jurors to hear additional evidence. See. . Court Open During Re- tirement of Jurors. After the jur- 3ec_V1ecVe__eotoIot0NIRN"#jwxwxww{“_“q_@q“$@q@q$q@q$@q$q““0aumsq_—0q00 eee ors have retired to consider their verdict the court may adjourn from time to time as to other business but shall be open for every purpose con- nected with the cause until the jurors are discharged from the cause. Sec. 224. Return of Jurors—Man- ner of Declaring the Verdict—Re- ceiving and Recording. When the jurors have agreed upon a verdict they shall be conducted into the court room by the officer having them in charge. Their names shall be called by the clerk and when all jurors respond to their names the judge shall ask them if an agree- ment has been reached on a verdict. If the foreman answers in the affir- mative, the judge shall call upon him to deliver the verdict in writing to the clerk. The Court may then ex- amine the verdict and correct it as to matters of form with the unani- mous consent of the jurors. The clerk shall then read the verdict to the jurors and unless disagreement ig expressed by one or more of them or the jury be polled, the verdict shall be entered of record, and the jurors discharged from the cause. No verdict may be rendered in any criminal case unless all of the petit s concur in it. . 225, Polling the Jury. Upon the motion of either the State of the defendant or of its own motion, the court shall cause the jurors to be asked severally if the verdict ren- dered is their verdict. If a juror dissents. the court must direct them sent back for the further considera- tion; and if there be no dissent the verdict shall be entered of record and the jurors discharged. Provided, however, that no jury shall be polled after a verdict directed by the court and no motion to poll the jury be entertained after the jury is dis- charged or the verdict recorded. Acquitted for Cause of When a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict ‘of not guilty, shall state that it was given for such cause, and thereupon, if the discharge or going at large of such insane person shall be consid- ered by the court manifestly dan- gerous to the peace and safety of the people, the court shall order him to be committed to jail or otherwise to mi be cared for as an insane person, or may give him into the care of his friends, on their giving satis- factory security for the proper care and protection of such person; oth- erwise he shall be discharged. Sec. 227. Sealed Verdict—Pro- ceedings on. ‘‘That court may, with the consent of the prosecuting attor- ney and the defendant, direct the jurors that if they should agree upon a verdict during a temporary ad- journment of the court, the foreman and each juror shal] sign the same, and such verdict shall be sealed in an envelope and delivered to the offi- cer having charge of the jury, after which the jury may separate until the next convening of the court, at which time they shall reassemble in the jury box. The officer shall, at the earliest possible moment, de- liver the sealed verdict to the clerk. When the jurors have reassembled in open court, the envelope shall be opened by the judge or clerk and the same proceedings shall be had as in the receiving of other verdicts, with the exception that the verdict having been signed by each juror there shall be no further necessity of polling the jury.” Sec. 228. Sealed Verdict—Admon- ition to Jurors. hen the court au- thorizes the rendition of a sealed verdict it shall admonish the jurors not to make any disclosure concern- ing it nor to speak with other per- sons concerning the cause until their verdict.shall have been rendered in open court. Sec. 229. Determination of Degree of Offense. If the indictment or information charges in offense which is divided into degrees, without spe- cifying the degree, the jurors may find the defendant guilty of any de- gree of the offense charged; if the indictment or information charges a@ particular degree the jurors may find the defendant guilty of the de- gree charged or of any lessor de- gree. The court shall in all such cases charge the jury as to the de- grees of the offense. Sec. 230. Verdict of Guilty Where More than one County. If different offenses are charged in the indict- ment or information the jurors shall, if they convict the defendant, make it appear by their verdict on which counts, if the indictment or informa- tion is divided into counts, or of which offenses they find him guilty. Sec. 231. Conviction of Attempt— Conviction of Included Offense. Up- on an indictment or information for any offense the jurors may con- vict the defendant of an attempt to commit such offense, if such attempt is an offense, or convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard. Sec. 232. Verdict in the Case of Joint Defendants. On the trial of two or more defendants jointly the jurors may render a verdict as to such defendant in regard to whom the jurors agree. Sec. 233. Reconsideration of Ambi- guous or Defective Verdict. If a ver- dict is so defective that the court cannot determine from it whether the jurors intended to acquit the de- fendant or to convict him of the of- fense for which judgment could be entered under the indictment or in- formation, or cannot determine from it on what count or counts the jur- ors intended to acquit or convict the defendant, the court shall, with proper instructions, direct the jurors to reconsider the verdict, and the verdict shall not be recejved until it shall clearly appear therefrom whether the jurors intended to con- vict or acquit the defendant and on what count or counts they in- tended to acquit or convict him, un- less htey persist in rendering such defective verdict, in which case the verdict shall be received and entered of record as rendered. Sec. 234. Verdict Rendered and Ad- ditional Instructions Given on Any ay. A verdict may be rendered and additional or corrective instruc- tions give on any day including Sunday or any legal holiday. Sec. Disposition of Defendant. If a verdict of guilty is rendered the defendant shall, if in custody, be remanded: if he is at large on bail he may be taken into custody and committed to the proper official, or remain at liberty on the same or ad- dition bail as the court may direct. Sec. 236. Discharge of Jurors. Af- ter the jurors have retired to con- sider their verdict the court shall discharge them from the cause when: (a) Their verdict has been recorded; (b) A necessity exists for their discharge ; (c) Upon the expiration of such time as the court deems proper, there is no reasonable probability that the jurors can agree upon a Verdict; (d) At the final adjournment of the court. charge the jurors from the cause if the prosecuting attorney and the de- fendant consent to such discharge. Sec. 237. Se in Rendition, Reception and Recording. No irregularity in the rendition, re- ception or recording of a verdict shall affect its validity unless the defendant was in fact prejudiced by such irregularity. Sec. 237a. Recommendation to Mercy. (i) In all criminal trials, the jury, in addition to a verdict of guilty of any offense, may recom- afte: mend the accused to mercy of the trial. court or to executive clemency, and such recommendation shall not ‘qual- ify the verdict except in capital cases. In all cases the court shall award the sentence and shall fix the punish- ment or penalty prescribed by law. (2) Whoever is convicted of a the jury in their verdict, shall ital offense and recommended to the mercy of the court by a majority, of sentenced to imprisonment for life or if found by the judge of the court, where there is np jury, to be entitled to a recommendation to mercy, shall be sentenced to imprisonment for life, at the discretion of the court. CHAPTER 20. Motion for New Trial and Arrest of Judgment. 238. Granting New Trial. When a verdict has been rendered against the defendant or the defendant has been found guilty by the court, the court on motion of the defendant, or on its own motion, may grant a new trial. Sec. 239. Time for Making Motion. (1) Every matter which heretofore could be set forth in a motion in ar- rest of judgment shall be included in the motion for a new trial and the filing of a motion in arrest of judgment is hereafter dispensed with. (2) When the defendant has been found guilty by jury or bv the court @ motion for new trial may be dic- tated into the record, if a court re- porter is present, and argued and dis- posed of by the trial judge immed- iately after the return of the ver- fict, or after defendant has been found guilty by the Court. The court may rule upon the same im- mediately and upon the denial of said motion the court shall immediately sentence the defendant and_ shail dictate to the reporter such denial; ‘tthe defendant may immediately thereafter file his notice of appeal, and upon filing notice of appeal the court shall fix the amovnt of the appeal bond if the defendant is en- titled to bail, and upon the filing of the notice of appeal and the filing and approval of the supersedeas bond the defendant shall be released from custody. A certificate shall be pre- pared by the clerk setting forth the filing and approval of the bond and such certificate when presented to the officer having the defendant in cus- tody shall be sufficient authority for the defendant's release. (2) A motion for a new trial may be made within four days, or such further time as the court may allow, not to exceed fifteen days, after the rendition of the verdict or the finding of the court, but until said motion for new trial is heard and disposed of, the defendant shall re- in in custody and not be allowed his liberty on bail; provided that the court may upon = cause bein, shown, if the offense for whic! convicted is Bailable, permit the de- fendant to be released upon bail until the motion for new trial is heard and disposed of. (4) In no case, whether capital or not, shall an Bpren be a supersedaes to ‘the execution of the judgment, sentence, or order commlained of, except upon payment by the appel- lant of all costs which have accrued in the case up to that time, and upon his entering into bond with two or more sufficient sureties according to law, in a sum sufficient to secure the payment of such judgment, fine future costs as may be adjudged and affirmed in the appellate court, and conditioned that the appellant shall be personally forthcoming to answer and abide the final order, senten< or judgment which may be pass in the premises by the appellate court, and in case the cause is re- manded, that the appellant shall per- sonally be and appear at the next term of the court in which the case was originally determined, there- after to be held to answer in the premises and not to depart from the court without leave thereof. But in cases where capital punishment is by the sentence of the court ordered to be inflicted, the person of the de- fendant shall be the only security re- quired for his forthcoming to an- swer as aforesaid. : Sec. 240. Gorm of Motion—Notice to Prosecuting Attorney. The motion for new trial may be in writing, and when in writing shall be filed with the clerk; it shall state the grounds on which it is based. copy of said motion, when in writ- ing, shall be served on the prosecut- ing officer, and when the court has set a date for the hearing of the motion, the clerk shall notify coun- sel for the respective parties, or the attorney for the defendant may procure a date for hearing from the judge and shall serve the notice of such hearing on the prosecuting officer. Sec. 241. Grounds for New Trial. The court shall grant a new trial if any of the following grounds are es- tablished: (a) That the jurors decided the ver- dict by lot; (b) That the verdict is contrary to law or the weight of the evidence; (c) That new and material evidence. which if introduced at the trial would probably have changed the verdict or finding of the court, is discovered which the defendant could not with reasonable diligence have discovered and produced upon the trial. Sec. 242. Grounds for New Trial, if Substantial Rights of Defendant Have Been Prejudiced. The court shall grant a newtrial if any of the following grounds are established, provided the substantial ri; the defendant have been thereby prejudiced. (a) That the defendant was not present at any proceeding where an presence is required under this 2 (b) That the jury has received any evidence out of court, other than that resulting from a view of the premises ; (c) That the jurors after retiring to deliberate upon the verdict have separated without leave of court; (d) That any of the jurors has been guilty of misconduct; (e) That the prosecuting attorney has been guilty of misconduct; (f) That the court has erred in the decision of any matter of law aris- ing during the course of the trial; (g) That the court has misdirected the jury on a matter of law or has tefused to give proper instruction re- quested by the defendant. Judgment shall be arrested only on one or more of the following grounds: (a) That the indictment or infor- mation does not charge an offense; (b) That the court is without juris- diction of the cause; (c) That the verdict is so uncer- tain that it does not appear there- from that the jurors intended to con- vict the defendant of an offense of which he could be convicted under the indictment or information ; (d) That the defendant was convict- ed of an offense for which he could not be convicted under the indict- ment or information; The court shall also grant a new trial when from any other cause not due to his own fault the defend- ant has not received a fair and im- partial trial, or the sentence exceeds the penalty provided by law. Sec. 243. When Evidence Sustains Only Conviction of Lesser Offense. In cases where the offense is di- vided into degrees or necessarily in- cludes lesser offenses, and the judge, on a motion for a new trial, is of the opinion that the evidence does not sustain the verdict but does sustain a conviction in a lesser degree or for a lesser offense ni in- cluded in the indictment or for- mation, the judge shall not grant a es trial but rps Hi fendant guilty of such lesser degree of offense necessarily included in the charge of which the defendant was convicted, unless such new trial should be granted by reason of some Se. of a motion for new (>) Where a motion for a new trial calls for the decision of any question of fact the court on such motion by affidavit or other- reporter his order gran’ refus- ing the motion for Sew tee in which event the court reporter shall ; deliver to the clerk of the court a transcript of the court's order, which shall be entered in the minutes of the court, but if the court makes an order’ in writing granting or refus-, ing the motion for new trial, such order shall be entered in the minutes of the court. Sec. 246. Effect of Granting New Trial. When a new trial is granted such new trial shall proceed in all respects as if no former trial had been had. but where an offense is di- vided into degrees and the defendant has been convicted of a lesser de- gree, he cannot thereafter be prose- cuted for a higher degree of the same offense. All the testimony in such former trial must be produced anew, ex- cept of witnesses who are absent from the State or dead, in which event the evidence of such witnesses on former trial may be presented, as the same was taken and trans- cribed by the court reporter. Before the introduction ef the evidence of an absent witness, the party introduc- ing same must show that due dili- gence has been used to procure the attendance of said witness at the trial, and that the witness is not ab- sent by consent or connivance of the party moving to introduce the evi- dence of such witness on the former trial. CHAPTER 21. Judgment and Sen- tence. Sec. 247. Judgment Defined. The term judgment as used in this Code means the adjudication by the court that the defendant is guily or not guilty. Sec. 248. Rendition of Judgment. If the defendant has been convicted, a judgment of guilty, and if he has been acquitted, a judgment of not guilty, shall be rendered, in open court and entered on the minutes of the court. Sec. 249. Judgment of Informal Verdict. If a verdict is rendered from which it can be clearly under- stood that it is the intention of the jurors to acquit the defendant, judg- ment of not guilty shall be ren- dered thereon even though the ver- dict is defective; but no judgment of guilty shall be rendered on a verdict unless the jurors clearly ex. press in it a finding against the de- fendant upon the issue. Sec. 250. Judgment of Not Guilty Defendant Discharged and Sureties exonerated. If a judgment of not guilty is rendered the defendant if in custody shall be immediately dis- charged therefrom unless he is in custody on some other charge; if he is at large on bail his sureties are exonerated and if money or bonds have been deposited as bail such money or bonds shall be refunded. Sec. 251. Sentence Defined. (1) The term sentence as used in this code means the pronouncement by the court of the penalty imposed on the defendant upon the acceptance of a plea of guilty or upon a verdict of guilty, or a finding of guilty by the court. (2) When judgment of guilty has been rendered sentence shall be pro- nounced in open court. Sec. . Defendant When Not in Custody, How Brought Before the Court. ‘When the personal presence of the defendant is necessary for the pronouncement of sentence, and he does not appear and is not in cus- tody, the court shall direct the clerk to issue either immediately or when so directed by the prosecuting at- torney a warrant for his arrest. The warrant may be reissued from time to time by direction of the court or of the prosecuting attorney. Sec. Duty of Court Before Pronouncing Sentence. When sen- tence is to be pronounced, the court shall inform the defendant of the accusation against him and of the judgment and shall ask him whether e has any cause to show why sen- tence should not be pronounced. ec. . at Causes May Be Alleged for Not Pronouncing Sen- tence. The person before the court to be sentenced may allege and show for cause why sentence should not be pronounced, only: (a) That he has become insane since the verdict was rendered; (b) That he has been the offense for which to be sentenced; (c) That he is not the person ag- ainst whom the verdict or judgment was rendered; (d) If the defendant is a woman, and the sentence of death is to be pronounced, that she is pregnant. Sec. . Procedure When Insan- ity is Alleged as Cause for Not Pronouncing Sentence. (1) When the e is about cause alleged for not pronouncing f. sentence is insanity, if in the opin- ion of the court there is reasonable ground for believing the defendant to be insane, the court shall postpone the pronouncement of sentence and shall appoint two competent disin- terested physicians to examine into the defendant’s mental condition and to report thereon. The physicians so appointed shall be allowed such fees as the court deems reasonable, which fees shall be paid by the coun- f ty in which the indictment was found or the information filed. If the court after hearing the report of the physicians decides that the de- fendant is insane it shall take steps to have the defendant committed to the proper institution. If later the defendant mes sane the proper officer of such institution shall noti- fy the court of that fact. (2) If the court determine from such report that defendant is sane, sentence shall be immediately pro- nounced. * Sec. 256. Procedure When Pardon is Alleged as Cause for Not Pro- nouncing Sentence. When the cause alleged for not pronouncing sentence is that the defendant has been par- doned for the offense for which he is about to be sentenced’ the court shall postpone the pronouncement of sentence if necessary for the purpose of hearing evidence of the pardon and on proof of such pardon shall not pronounce sentence shall dis- charge the defendant from custody, unless he is in custody on some oth: er_c . Sec. 257. Procedure When Non- Identity is Alleged as Cause for Not Pronouncing Sentence. When the cause alleged for not pronouncing sentence is that perecn brought before the court to sentenced is not the person against whom the verdict or judgment was rendered the court shall postpone the pronounce- ment of sentence of necessity for the purpose of hearing evidence thereof, and on proof of non-identity shali discharge such person from custody, unless he is in custody on some other hag e. Sec. 258. Procedure When Preg- nancy is Alleged as Cause for Not pay Ry cause or Pronoun: is that the defendant pregnant, the court shall post; the prono’ the fendant’s mental all ad; the de- judge the —_ it. Inquriy Into Mitigating or Aggravating Circumstances. When ‘court has discretion as to the penalty to be inflicted on the defen- the dant it shall, upon the suggestion of either party there are circum- Cinree winch aay proveriy be'teken into consideration, evidence to the same court, either to the ad party the verse as Se = ardoned of pe, motion. Sec. 260. Sentence of Impriso1 ment Until Fine Paid. Whenever a court shall sentence and adjudge a person to pay a fine or a fine and costs of prosecution such court shall also provide in such sentence a per- iod of time for which ich person shall be imprisoned in default of the payment of the same. Sec. 260a._ Stay of Execution of Sentence to Fine—Bond and Proceed- ings. (1) Persons convicted of crimes, who shall have a pecuniary fine or sum of money assessed or adjudged against them as punish- ment therefor, shall have the right on being taken into custody by the proper officer of the court, or prior to such arrest, to give bail for the payment of such fine and the costs of prosecution. Such bail shall be by bond, conditioned for the payment of the fine and costs, executed by the defendant and one or more good and responsible persons to be ap- proved by the court, if in session at the time; otherwise by the sheriff or the officer charged with the exe- cution of the ene (2) The bond shall be made pay- able in ninety days from the date thereof to the Governor of this State and his successors in office, and if not paid at the expiration of the ninety days, the sheriff or other officer aforesaid shall endorse on the bond that default has been made in the payment, and having signed such endorsement, shall file the bond with the clerk of the court in which judgment was rendered, and the clerk shall forthwith issue execution for the amount of the fine and costs against the security. or bail, as if there had been judgment at law on such bond, and the same proceedings shall be had as in cases of other executions, and the person convicted shall be liable to be proceeded ag- ainst, as if no such bond had been given, until the same has been fully paid and satisfied. Sec. Sentences When to Be Concurrent and When Consecuti When the defendant has been con. victed of two or more offences charg- ed in the same indictment or in- formation or is consolidated indict- ments or informations, the terms of imprisonment shall be served con- currently unless the court expressly directs that they or some of them be served consecutively. Sentences or imprisonment for offenses not charged in the same indictment or information shall be served consecu- tively unless the court expressly di rects that they or some of them be served concurrently. CHAPTER 22. Execution. Sec. 262. Commitment of Defend- ant—Duty of Sheriff. Upon pro- nouncement of a sentence imposing a penalty other than a fine only or death the court shall, unless the exe- cution of the sentence is suspended or stayed, and, in such case, upon revocation of the suspension or ter- mination of the stav. forthwith com- mit the defendant to the custody of the sheriff together with a certified copy of the sentence, and the sheriff shall thereupon, within a reasonable time, if he is not the proper official to execute the sentence. transfer the defendant, together with the copy of the sentence, to the custody of the official whose duty it is to execute the sentence, and shall take from such official a receipt for the defen- dant and make a return thereof to the court. Sec. 263. Execution of Sentence Imposing Fine. If the sentence im- poses a fine with or without im- prisonment execution may be issued thereon as on a judgment in a civil execution. Sec. 264. Habeas Corpus While Serving Sentence. (1) When a defen- dant has been sentenced, and is actually serving his sentence, and has not appealed from the judgment or sentence, but seeks his release from imprisonment by habs P proceedings, and the Writ has been refused, of the Writ has been discharged after it has been issued, the custody of the prisoner shall not be disturbed, pending a re- view by the appellate court. : (2) Pending a review of a dicis- ion discharging a prisoner on ha- as corpus, he shall be discharged upon bail, with sureties to be ap- proved as other bail bonds are ap- proved for his arance to answer and abide by the Judgment of the ap- Pellate proceeding. Sec. 265. Application for Discharge. ‘When any person sentenced by any court, of the State of Florida to pay a fine or fine and costs, whether with or without imprisonment, had been confined in prison sixty days, solely for. the non-payment of such fine and costs, he mav make application in writing to the judge of any circuit court or criminal court of record in the county where he is confined, set- ting forth his inability to pay ‘such fine, or fine and costs, and the judge of such court shall proceed to hear and determine the matter, and if, upon examination, it shall appear to him that such person is totally unable to pay such fine or fine and costs, and that he has not any propery, exceeding twenty dollars in value, the iudge of such court shall administer to him the following oat! I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, and that I have no property in any way conveyed or concealed, or any way disposed of, for my future use or benefit. so help me God." And there- upon such person shall be discharg- ed from further custody, the re giving the jailer or keeper of the bmn a certificate setting forth the facts Sec. 266. Forms of Sentence to State Prison and County Jail. (a) When punishment of imprisonment in the State prison is awarded ag- aginst any convict, the form of the sentence shall that he im- pe by confinement at hard la- r. (b) When punishment of imprison- ment in the County Jail is awarded against any convict, the court may also sentence the prisoner to be em- ployed at hard labor; and in such case, he may be employed at such manual labor as the County Commis- sioners may di a Sec. 267. Execution and Sentence or Death—Who May Suspend. The execution of a sentence of death shall not, be suspended or stayed, apart from the stay incident to an appeal, except by the governor. Sec. 268. zs When Per- son Under Sentence of Death Ap- pears to be Insane. (1) If there is reasonable ground to believe that a defendant under sentence of death become insane since he was sen- tenced the warden of the State peni- tentiary shall immediately notify the governor thereof who shall si nd execution of the sentence until he issues a warrant for its execution. On suspending tence the gover- nor shall appoint a commission con- of two competent disinterested lans to examine into the de- condition. The com- mission so appointed may call and examine witnesses and compel their phate (3) If the governor after receiving report of the commission decides that the defendant is insane, he shall take steps to have the defendant committed to the State ital for 1. Court on : of the state prison, or his deputy fendant has been restored to sanity. The commission shall have the same powers and be allowed the same fees as are provided for in this Code in insanity proceedings. If after the re- port of. the commission, the gover- nor decides that the defendant has been restored to sanity he shall cause the defendant to be returned to the custody of the warden of the state penitentiary and shall issue a war- rant to the said warden directing n to execute the sentence at a_ time designated in said warrant. Sec. 269. Proceedings When Per- son Under Sentence of Death Ap- pears to Be Pregnant. (1) If there is ground to believe that a defendant under sentence of death is pregnant the warden shall immediately notify the governor thereof who shal! sus- pend execution of the sentence until he issues a warrant for the execution of the sentence. On suspending the sentence the governor shall appoint a commission consisting of two com- petent disinterseted physicians to ex- amine the defendant as to such Pregnancy. The commission shall report its finding to the governor. The physicians constituting the cot mission shall be allowed such fees as the governor demes reasonable, which fees shall be paid by the state. (2) If the governor after receiving the report of the commission decides that the defendant is not pregnant he shall issue a warrant to the wa den directing him to execute the tence at the time designated in warrant. (3) When the warden is s: i that a defendant under sentence of death who has been found to be pregnant is no longer pregnant he shall so notify the governor who, upon receiving the notice, shall is- sve to the warden a warrant d ng him to execute the sentence at a time desginated in said warrant Sec. 270. Capital s. Whenever any person shall be convicted of any crime for which senten of death shall be awarded aga the clerk of the courts as soon y be shall make out and deliver to the sheriff of the county a certified copy of the whole record of the convic- tion and sentence, and the sheriff shall forthwith remit the same to the Governor, and the sentence of death shall not be executed upon such convict until a warrant shall be issued by the Governor, under the seal of the State, with the copy of the record thereto annexed c manding the execution of the tence of death to be done, and ing therein some designated week, beginning with Monday, in which week such sentence shall be execut pursuant to such warrant and cording to the manner and means hereinafter prescribed Sec. 271. low Punishment of Death Inflicted. On and after Jan- aury 1, A. D. 1924, death by hanging as a means of punishment for in Florida is hereby abolished electrocution. or death by electricity substituted therefor. Punishment of death shall in all cases be inflicted by causing to pass through the body of the convict a current of elec- him, immediate death, and tion of such current must be tinued until such convict is 4 and the sentence of death shall, a the time directed by the warrant, be executed within the walls of per- manent death chambe which the commissioners of state’ institutions are hereby authorized and required to provide at the state prison farm or such other place in the State of Florida, as such Commissioners of State Institutions shall establish, and the superintendent of the state ‘pri on. or in the case of his death, di ability or absence, a deputy ‘shall be executioner. The superintendent of the state prison shall c: e to be provided in conformity with this tion and approved by the governor and commissioners of State Insti- tutions the necessary electric chair or other appliances for the inflic- tion of the punishment of deaih in accordance with the requirements of this section. Before every exe tion, the death warrant authorizing the ‘same shall be distinctly read in the presence of the condemned per- son to be executed immediately prior to the infliction of death as hereto- fore provided. See. 27: Regulation of Execution. The ‘superintendent of the State prison or some authorized deputy by him to be designated shall 2 present at the execution, and for the purpose of executing sentences of death as provided by law, the sher- iff of the county wherein the con- viction was had shall be exofficio deputy executioner of such senten: of death and shall be present at t execution unless he be prevented b sickness or other disability. Not less than five days prior to the week of execution. the person sentenced to death shall be kept securely in or adjacent to the permanent. de chamber, and the sentence of de shall be carried out on some we day of the week fixed by the go’ renor as the week of execution, t time of carrying out such sentence to be decided by the superintendent the applica- in his absence, death or disability. All executions shall be carried out by the exceutioner, deputy executioner and such deputies, electricians and assistants as he may require to be Present to assist. and shall be in the presence of a jury of twelve respect- able citizens who chail be requested to be present and witness the same, and all other persons other than jury. the counsel for the criminal, Such ministers of the gospel as the criminal shall desire, officers of the prison, deputies and guards shall be excluded during the execution. The executioner or his deput~ shall re- quire the presence of at least one competent practicing physician, or the physician of the prison, who shall examine the convict during the ex cution and announce when death hi been inflicted on such convict. F resentatives of the press shall be permitted to be present a the execu- tion under regulations to be approve¢ by the Board of State Institution’ Upon the completion of the infli tion of death, the dead body of the convict shall be dressed for burial and delivered to the relatives of the deceased if they shall have request- ed that such be done, such delivery to be at the gates of the prison and if no other receptacle has been pro- vided, shall te delivered in a plain coffin whose cost shail not exceed fifteen dollars. In the event the body shall not have been claimed by rela- tives on or before the day of execu- tion, such body shall be delivered to uch physicians as may request the same for dissection, or shall buried or disposed of as convicts dying in the state prison are buried or dis- posed of. In all cases where sen- tence of death has been pronounced against any person to be executed by electrocution as hereinbefore pro- vided. the convicted person shall be delivered by the sheriff of the coun- ty to the superintendent of the state prison at the place of execution. as ians to determine whether the de- soon as may be after receipt of the death warrant for such convict from the Governor. Sec. 273. Return of Warrant. Af- ter punishment of death has be inflicted upon any convict in obedi- ence to the warrant of the Gover- Nor, the officer in charge of such execution shall return the warrant as soon as may be with a siate- ment under his hand of his doings therein. to the Governor, and shall also file in the clerk's office where the conviction was had, an attested copy of the warrant and the state- ment eforesaid, and such shall be by the clerk recorded in the minutes of the court whose judgment was thus executed. Sec. 274. Sentence of Death Unex- ecuted Because of Appeal—Duty of Affirming. ‘When a judg- ment or sentence of death has been on appeal, after the time