Smith v. State , 65 Fla. 56 ( 1913 )

Shackleford, C. J.

Collin Smith was convicted under both counts of an information charging forgery and uttering and passing a forged instrument, and seeks relief here by writ of error.

The first assignment is based upon an alleged order of the court in denying a motion to quash the information, but, as such alleged ruling is not disclosed by the record, we cannot consider it. Douberly v. State, 51 Fla. 41, 40 South. Rep. 675. We pass the second assignment, based upon the overruling of the motion for a new trial, for the present, but shall consider it later. The third assignment is simply repeated and is not argued, hence must be treated ás abandoned, especially since the error complained of is- not so glaring or patent that no argument is needed to demonstrate it. McCall v. State, 55 Fla. 108, 46 South. Rep. 321.

The fourth assignment is based upon the overruling of the ground of objection interposed by the defendant to the following question propounded on the re-direct examination by the State to W. O. Campbell, a witness introduced by the State: “Would you judge that the man that wrote that on there wrote that signature?” This assignment is so slightly argued that we might well treat it as abandoned. Suffice it to say that the witness had testified on his direct examination that he was the assistant cashier of the bank upon which the instrument alleged to have been forged had been drawn and which such bank had cashed and had testified fully as to the facts and circumstances connected therewith with which he was acquainted, both on his direct examination and on the rather extended cross-examination to which he was subjected. The sole ground of" objection was “We object, that is purely a matter of opinion.” In view of the fact that the defendant on the cross-examination of the witness had repeatedly called for expressions of his opinion as to matters connected with such instrument, we think that he was hardly in a position to object on that ground to the question. It is not suggested or pointed out to us wherein the answer of the witness could have been harmful to the defendant, and, after reading the entire testimony of the witness, we fail to discover wherein any harm could have ensued.

The fifth assignment is that “The court erred in remarking as follows: ‘If he knows the guilt of any other party he can testify as to that,—not just applying for a warrant.’ ” It is sufficient to say that the record does not disclose any objection to this statement, any ruling of the court thereon or any exception thereto, therefore this assignment presents nothing to us for consideration. See Williams v. State, 32 Pla. 251, 13 South. Rep. 429; Pittman v. State, 45 Fla. 91, 34 South. Rep. 88; Gaines-ville & Gulf R. R. Co. v. Peck, 55 Fla. 402, 46 South. Rep. 1019.

The sixth assignment is that “The court erred in refusing to allow the witness, W. L. Smith, to prove the application for a warrant for Lonnie Herbert.” The bill of exceptions discloses that the witness was asked by the defendant as to whether or not he had applied to the County Judge for a warrant for Lonnie Herbert and after the witness had replied in the affirmative the State objected to the question and the objection was sustained. As the defendant got the full benefit of the answer, no motion being made to strike it out, he has no ground of complaint.

We have now disposed of all the assignments, except the second, which we temporarily passed and which is based upon the overruling of the motion for a new trial. This motion consist® of five grounds. Following our established practice, we consider only such grounds as are argued before us. Revels v. State, 62 Fla. 83, 56 South. Rep. 416. The fifth ground is based upon the refusal of the trial court to give a certain requested instruction. We cannot consider' this ground, as it appears only in such motion. As we have repeatedly held, a refusal of an instruction cannot be excepted to in a motion for a new trial. Thomas v. State, 49 Fla. 123, 38 South. Rep. 516. The other grounds argued question the sufficiency of the evidence to support the verdict. We have carefully examined the evidence and are of the opinion that the jurors, acting as reasonable men, could have well have found it. This being true, we must refuse to disturb it. Bexley v. State, 59 Fla. 6, 51 South. Rep. 278; Padgett v. State, 64 Fla. 389, 59 South. Rep. 946; Revels v. State, 64 Fla. 432, 59 South. Rep. 951. Having discovered no reversible error, the judgment must be affirmed.

Taylor, Cockrell, Hocker and Whitfield, J. J., concur.