Palmore v. State

62 So. 581, 65 Fla. 539

• Court: Supreme Court of Florida
• Decided: June 9, 1913
• Status: Published

Opinion

Shackleford, C. J.

Fierce Palmore seeks relief here from a conviction of the crime of assault with intent to commit manslaughter. Six errors are assigned, the first of which is based upon the order overruling the motion for a new trial, but, as this assignment is not argued here, it must be treated as abandoned. Hoodless v. Jernigan, 46 Fla. 213, 35 South. Rep. 656. We would further call attention to the fact that this assignment could not be considered by us for the reason that such motion, with the ruling thereon and the exception to such ruling, are not evidenced to us by the bill of exceptions, but appear only in the record proper. See Johnson v. State, 53 Fla. 42, 43 South. Rep. 430, and Bell v. Niles, 61 Fla. 114, 55 South. Rep. 392. The five remaining assignments are grouped together and are argued in the most general way. They are all based upon the refusal of the trial court to permit the defendant to show a previous difficulty between him and the person upon whom the assault was made some four or five months pxdor thereto. We have repeatedly held that assignments based upon the exclusion of testimony to be available must be so presented to an appellate court as to make it appear that the excluded testimony was relevant and material, or otherwise proper to be admitted. Boykin v. State, 40 Fla. 484, 24 South. Rep. 141; Wright v. State, 42 Fla. 239, 27 South. Rep. 863; McCall v. State, 55 Fla. 108, 46 South. Rep. 321; McKinnon v. Lewis, 60 Fla. 125, 53 South. Rep. 940; Covington v. Clemons, 61 Fla. 151, 55 South. Rep. 81. It is sufficient to say that the plaintiff in error has failed to comply with this requirement, as laid down in the cited cases.

Judgment affirmed.

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