John D. C. v. ex rel. Julia V. H.-Opinion of Court.

and the subsequent payment of the money collected thereon, should be closely followed, and the judgment of the court should be in strict compliance therewith. Subsequently, if a guardian is appointed by the judge of probate and qualified as provided by the statute, the court shall, as the money may be collected upon the bond, by order, from time to time, pay the same over to such guardian.

The bond has the same force and effect as a judgment of the court, upon which execution may issue as often as money becomes due thereon. Such execution must be issued upon the bond and in the names of the parties mentioned in such instrument.

The court has the entire control of the bond and the money collected, and must dispense it as directed by the statute, by its orders from time to time made:

The only other questions which arise are upon the instructions asked by defendant's counsel to be given to the jury, and which the court refused. It is true that the burden of proof was with the plaintiff, and also that the fact that defendant was father of the child must be established by the weight of evidence. To determine these very questions the jury was summoned and sworn. If of ordinary intelligence, as they undoubtedly were, they knew and appreciated their duties and responsibilities, and before rendering their verdict under their solemn oaths considered the whole testimony, and determined as to the credit to be given to the evidence. The instructions of the court to the jury, so far as these points were concerned, is fair and presents the case properly. It is not necessary for a court to charge the jury particularly upon every minor point. If the charge is fair and presents the case in an impartial manner, it is sufficient. 14 Mo., 97.

The court was, among the other points, asked to charge "that in a prosecution for bastardy, the mother of an illegitimate child has an interest in the result, which, if she is

Reed, Story and Sullivan v. State-Syllabus.

called as a witness, may be considered by the jury in weighing the testimony."

The statute under which these proceedings were instituted provides that "if, upon the trial of the issue aforesaid, it should be found by the jury against the woman,or that such bastard is not the child of the reputed father, then the judgment of the court shall be that the defendant or reputed father be discharged, and that the woman making the complaint shall pay all costs occasioned thereby."

If the putative father had been acquitted upon the trial, the mother would not only have been bound to maintain. and educate the child, but under this statute a judgment would have been entered against her for the costs of the proceeding. Here is an interest which affects the credit of the complainant, and as her credibility was a material question for the jury, the instruction asked for in this particular should have been given.

It was error in the court not so to instruct the jury, and for this reason the judgment must be reversed. Keating vs. State, 44 Ind., 449.

REED, STORY AND SAMUEL SULLIVAN, PLAINTIFFS IN ERROR, VS. THE STATE OF FLORIDA, DEFENDANT IN ERROR.

1. The record showing that the defendants were brought into court, that they appeared by counsel, plead to the indictment, were tried and convicted, is sufficient evidence of a proper arraignment.

2. When the bill of exceptions does not bring up all the evidence taken upon the trial of the cause, the court will infer that there was suffi.. cient introduced to warrant the finding of the jury.

3. Exceptions to the charge of the court must be taken at the time the instructions to the jury so complained of are given, and the evidence of that fact must appear in the bill of exceptions.

Reed, Story and Sullivan v. State-Argument of Counsel.

4. To enable a party to avail himself of the error in the court refusing to instruct the jury as requested, the attention of the court must be called to the particular points upon which such instruction is asked and that before the jury shall have retired to consider of their verdict.

Writ of error to the Circuit Court for Orange county. There is a sufficient statement of the facts in the opinion of the court.

John W. Price for Plaintiffs in Error.

The first error assigned is that the defendants were not arraigned previous to being put upon their trial. There was no plea entered by them, though the jury were empannelled and sworn to try an issue then joined between the State of Florida and the defendants at the bar, who could only be legally tried upon an issue which had previously been joined by the arraignment and plea of the defendants.

The provision of the criminal law is so positive in the requirements thereof, that all persons charged with a felony must be first arraigned and plead before such person is put upon trial. The proposition is so plain that I think it unnecessary to say more here. See Bishop's Criminal Procedure, 728, and 13 Fla. R., 632, where the court suggests how the arraignment shall be made.

If there was no plea entered to raise an issue, the verdict of the jury was illegal and void. See 2 Fla. R., 42.

The second assignment of error opens a much larger field for consideration than the first. The error is shown as manifest as the first.

"An

The first inquiry then is, "What is an animal?" organized living being,endowed with sensation and power of voluntary motion, and also characterized by taking its food into an internal cavity or stomach; by giving carbonic acid to air, and taking oxygen in the process of respiration; by

Reed, Story and Sullivan v. State-Argument of Counsel.

increasing in motive power or action aggressive force with progress to maturity."-Webster.

"An animal after it is dead changes to an inanimate mass- -a carcass. The dead body of an animal, a corpse." Webster.

"Animal Property.-A name given to every animated being endowed with power of voluntary motion. In law it signifies all animals, except those of the human species." Bouvier's Law Dictionary.

We are all legally compelled to admit that as soon as an animal dies, from the moment death takes place in such animal it ceases to be animal; from the moment it is rendered motionless by death, it ceases to be an animal and becomes a carcass, a corpse.

The animal named and described in the indictment, for the altering of whose mark these defendants were indicted to put upon their trial and convicted solely and entirely by evidence which showed conclusively that the animal whose mark had been changed was dead before the altering had taken place, was the altering the mark of a dead hog— the carcass of a hog-which had at the time ceased to be an animal.

The Act of 1868, Sec. 51, page 78, says: "Whoever,&c., shall alter the mark of an animal with intent to claim the same, or to prevent identification by the true owner, shall be punished," &c. The general principle of law is that every person is presumed to be innocent until proved guilty, as shown by authorities hereafter cited. That being one of the charges in the indictment, the State undertook to prove that the mark of an animal had been changed.

The State did prove that there had not been an animal's mark changed, for the State's evidence showed the animal named therein was dead before the mark was altered-had before ceased to be an animal.

There should have been no evidence admitted unless rele

Reed, Story and Sullivan v. State-Argument of Counsel.

vant to the issue. As soon as it was shown by the evidence that the animal named and described in the indictment was dead before the mark was altered, all evidence relating thereto should have been excluded by the court. See I Greenleaf on Evidence, page 71.

The third assignment of error covers a still larger field, one that should be closely examined, and every error committed therein be corrected, and the legal right to justice be accorded to every citizen entitled thereto, without unreasonable delay, in our land of constitutional liberty, where the citizen is presumed to be innocent until proved guilty.

The statute of this State requires the Judge of the Circuit Court to charge the jury upon the law of the case only. Sec. 8 of Act approved January 4, 1848. See Acts of 1847, page 10, and Secs. 1 and 2, Act approved March 2, 1877. See Acts of 1877, pages 42 and 43.

It will scarcely be contended that a charge of the court is legal or proper where only a portion of the law is given, more especially under the act of 1877. After the court has been requested in writing to charge in writing, whenever that request is made in writing according to law, it then becomes the duty of the court to charge the whole law applicable to the case. Having prefaced my remarks on this assignment of error, I will now examine the charge of the court as given in this case, from which we will learn and ascertain how far the requirements of the law were executed by the court in his charge given in the case at bar.

Without admitting the correctness of any portion of the charge of the court, I pass over what occurs therein before the following: "If a party cuts out the mark of an animal which he had no right to alter, it is for him to show that there are no circumstances nor intent involving fraud."

It is one of the elementary principles of evidence that whoever asserts an affirmative of any proposition, and asserts that a right has been disregarded or a wrong com