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Irvin v. The State of Florida-Opinion of Court.

Judgment affirmed.

The plaintiff in error then filed a petition asking for rehearing.

MR. JUSTICE VAN VALKENBURGH delivered the following opinion thereon:

A petition for rehearing was filed in this case. The petitioner states that one ground relied upon for the purpose of securing a new trial was, that the record does not show affirmatively that the prisoner was personally present when the judgment overruling the motion for a new trial was 1endered. He further says that a record of proceedings of the cause filed on the 2d day of November, 1882, states that upon the rendition of the verdict the prisoner was remanded, and that neither it nor the other copy of said proceedings show that the prisoner was again in court until he was led to the bar to be sentenced; that the two copies of the record were filed, one on the 2d day of November, and the second on the 4th day of January following.

There is but one record in this case upon which this court can act. The writ of error was issued, as appears by the writ, on the second day of November, A. D. 1882, and was served upon the clerk of Franklin county on the 8th day of November. The clerk's certificate to the return, made in compliance with the requirements of such writ, is dated on the 29th day of December, 1882, and was filed in this court on the 4th day of January, 1883. This return, made in compliance with the order of this court, is the only record of which it can take notice, and it was in reference to that alone that the opinion is based upon. Had the record been defective in any respect the counsel could have had it corrected under the rules of the court. It nowhere in the record appears that the prisoner was at any time out of

Irvin v. The State of Florida-Opinion of Court.

the presence of the court, but from it the presumption is that he was in the court during all of the proceedings. The counsel cites the 2d and 12th Florida. In both of these. cases the record shows that the prisoner was absent during proceedings had upon the trial. In the first, Holton vs. The State, the court, in the statement of the case, says: "It also appears from the record that after the jury had retired the Judge gave instructions to the sheriff that if the jury did not agree in one hour to adjourn the court until next morning. Between 11 and 12 o'clock at night the Jury sent to the Judge, by the bailiff, for his charge. The clerk was directed to make out a copy, which was done, and the foregoing charge, not sealed or certified, with the exception of the words, or accident,' was sent to them, without the consent of the prisoner or his counsel." In the second case, Gladden vs. the State, this court says (after stating that several grounds of error, other than those disposed of, had been assigned,): "We will consider but one of them, which was the absence of the prisoner from the court, for some minutes, three several times during the progress of the trial, at one time when one of the State witnesses was being examined, at another when a witness for the defence was being examined, and a third time during the argument of counsel. The absence was voluntary, but without any express waiver of his right to be present." "This court has laid down the rule very broadly, and has, perhaps, extended it beyond the views of the courts of some other States," and then cites Holton vs. State, supra, deciding the question. We think the rule should be extended no further, and it is questionable, with reference to the authorities, whether the presence of the prisoner is necessary during a motion for a new trial. This question, however, is not here, and we do not therefore propose to decide it. See Jewell vs. Commonwealth, 22 Pa.

* *

Irvin v. The State of Florida-Opinion of Court.

St., 94; 1 Bish. Cr. Pr., §277. In the case of Griffin vs. The State, 34 Ohio St., 299, the court say: "There is no doubt that the prisoner had a constitutional right to appear in court at his trial, and defend in person and by counsel, and to meet the witnesses face to face, before an impartial jury. But it is doubtful whether it is necessary for the defendant to be present in court during the agitation of questions of law, between the rendition of the verdict and sentence," and cites 3 Am. Cr. Law, $2998.

The whole record before the court must be taken with its reasonable intendments, and in view of it in all its parts we must deny the petition for rehearing.

INDEX

TO THE

NINETEENTH VOLUME FLORIDA REPORTS

ACCOUNTS AND ACCOUNTING. See Administrators and Executors,
1-17;Evidence and Witnesses, 11; Guardian and Ward, 5, 6.
ADMINISTRATORS AND EXECUTORS. See Evidence and Wit-
nesses, 17, 20; Garnishment; Principal and Surety, 3; Wills, 1,
2, 3.

1. An executor in taking the office accepts not only all the trusts
imposed by the will under which he acts, but also all the trusts
in respect to the assets with which his immediate testator was
charged. And an executor of a guardian is liable to a ward to
account and pay over to him money due to the ward on arriving
at majority which was in the hands of the guardian. Bloxham,
Governor, vs. Hooker's Executors, 163.

2. Such money due to the ward is not general assets of the deceased
guardian for the payment of debts and for distribution. Id.

3. An executor of a guardian in possession of the estate is, like the
guardian, a trustee of funds of the ward which was in the cus-
tody of the guardian at the time of his death, and in a suit in
behalf of the ward against the executor to recover the funds so
held in trust, neither the statute of limitations nor the statute of
non-claim can be pleaded in bar. Id.

4. Upon a sale of personal property of an estate it is the duty of
the administrator to take a promissory note or bond with good
security for the credit extended. He is not chargeable with the
amount immediately when he acts in good faith and with ordi-
nary care. He becomes liable at the expiration of the time of
credit, and to discharge himself he must show that the money,
if not received, was lost without any default or negligence on his
part. The burden of proof is upon him to show, first, that he
took good security, and second, that the subsequent loss was not

29-19th Fla

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