otherwise acquired jurisdiction of his person, or jurisdiction by seizure of his individual property described in the bill, the sale made under the execution issued upon that judgment conveyed no title to appellees.

The decree of the court below is reversed, and the cause remanded, with directions to enter an order dismissing the bills of complaint.

MAXWELL, C., concurs. HOCKER, C.,

absent.

PER CURIAM. The foregoing opinion has been examined by the court, and is hereby approved and adopted, and ordered to be filed as the opinion of the court in said

cause.

MITCHELL v. STATE.

(Supreme Court of Florida. July 23, 1901.) CRIMINAL LAW-OPINION EVIDENCE-GROUNDS OF OBJECTIONS ΤΟ EVIDENCE MUST BE STATED ARGUMENT OF COUNSEL - HARMLESS ERROR NEWLY-DISCOVERED EVIDENCE AS GROUND FOR NEW TRIAL.

1. The physical or mental condition or ap pearance of a person, or his manner, habit, or conduct, may be proved by the opinion of an ordinary witness, founded on observation.

2. General objections to questions addressed to witnesses, without stating the precise ground of objection, are vague and nugatory, and are without weight before an appellate court.

3. It is not reversible error for the court to refuse to interfere with the argument of counsel because it is illogical, or not based on deductions reasonably inferable from the facts.

4. If, from the verdict returned, it is clear that a charge given did not influence the jury in arriving at it, and if, from the standpoint of the verdict actually found, such charge was favorable to the defendant, he cannot complain of it on writ of error, even though it may have been erroneous.

5. Applications for new trial upon the ground of newly-discovered evidence are looked upon with distrust and disfavor, and are granted only under the following restrictions: (1) The evidence must have been discovered since the former trial; (2) the party must have used due diligence to discover and procure it on the former trial; (3) it must be material to the issue; (4) it must go to the merits of the cause, and not merely to impeach the character of a witness; (5) it must not be merely cumulative; (6) it must be such as ought to produce on another trial an opposite result on the merits. The party applying must make his vigilance apparent; for if it is left even doubtful that he knew of the evidence, or that he might, but for negligence, have known of and produced it, he will not succeed in his application. It is no sufficient proof of diligence in this respect merely to assert in the affidavit that the de fendants have used every endeavor to obtain evidence bearing on the issues involved in the case. Neither is it sufficient to show that the newly-discovered evidence was not known to the defendant's counsel until after the former trial.

(Syllabus by the Court.)

Error to circuit court, Escambia county; Evelyn C. Maxwell, Judge.

William Mitchell was convicted of murder, and brings error. Affirmed.

C. M. Jones (Mark D. Brainard, on the brief), for plaintiff in error. William B. Lamar, Atty. Gen., for the State.

TAYLOR, C. J. The plaintiff in error, William Mitchell, or Will Mitchell, as he is called in the indictment, was indicted and tried for, and convicted of, murder in the first degree, for the homicide of one Aaron Hines, with recommendation to mercy, and sentenced to life imprisonment, at the fall term, 1900, of the circuit court of Escambia county, and from such sentence took writ of error here.

After two witnesses for the state had testified, in substance, that they were present with the deceased and the defendant at an entertainment at the house of one Gaines on the night of the homicide, and that at said entertainment, some hours prior to the homicide, they were present when the deceased, in play, fastened a spring clasp from a suspender on the ear of the defendant, the deceased calling it a "kissing bug," and that a few words were passed about it be tween the deceased and the defendant, the latter saying to the former that "he would get him for it," or "would see him again," the state attorney asked of one of such witnesses the following question: "What was Mitchell's manner at that time?" and of the other witness: "What was Mitchell's mauner at the time the above remarks were passed? What kind of humor did he seem to be in?" These questions were objected to by the defendant, the objections were overruled, and the defendant excepted; and such rulings constitute the first and second assignments of error. The objection advan

Iced at the trial to the first of the above questions was that it called for a conclusion of the witness. To the other question propounded to the second witness no specific objection was raised. Both of these rulings were proper. Both questions sought to elicit the mental condition of the defendant as exhibited by his manner on the occasion inquired about,-whether he was in an angry or friendly mood,-and both fall within the rule that "the physical or mental condition or appearance of a person, or his manner, habit, or conduct, may be proved by the opinion of an ordinary witness, founded on observation." Higginbotham v. State, 42 Fla. 573, 29 South. 410, and authorities there cited.

At the trial the defendant took the stand as a witness on his own behalf, and testified, in substance, that while he was sitting down at the entertainment, called a "mite meeting," with one girl by his side, and another in front of him, the deceased put a kissing bug on his ear; that it hurt so bad he jumped up, took it off and threw it down, and asked deceased what he did it for, and that deceased then asked if he did not like it, and, on his saying "No," the deceased struck him in the face and said, "Find it, then," and "said I had to find it," and struck him

in the face two or three times; that the whole crowd of boys were there, and they said, “Make him find it;" that he broke out of the crowd and remained aloof from them the rest of the evening; that one of the girls with him was named "Bama," and was near enough, if noticing, to have seen deceased strike him in the face; that the homicide took place on the street after the entertainment had broken up; that he purposely remained behind to let the deceased and other boys get out of the way before he left the house of the entertainment, and that while he was on his way home in the company of two girls, one of whom was Bama, he noticed a crowd of the same boys standing at a corner, and on his coming up one of them remarked, "We will get him; here he comes," upon which he handed a waiter he was carrying to one of the girls, and crawled through a crack in a fence near by, when the whole crowd began throwing brickbats at him, knocking him down, and after they had thus knocked him down two or three times he drew his pistol and fired into the crowd, as all of them were throwing bricks at him, and that he could not tell the deceased from any one else in the crowd; that he shot at the crowd, and specially at no one; that the girl Bama was with him, and had the same opportunity of seeing and hearing what then happened as he had. At this juncture the state attorney, on cross-examination, asked him the following question: "Where is Bama now?"-to which question the defendant objected generally, without assigning any ground of objection, which was overruled and exception noted. This ruling is assigned as the fourth error. The state attorney afterwards, without objection, drew from the defendant on cross-examination the fact that he did not know where the girl Bama was, and that he had not tried to find her, and had not had a subpoena issued for her. She was not offered as a witness. his argument to the jury the state attorney said that "Bama and the other woman had the same opportunity of seeing and hearing what happened at the time Aaron Hines put the pinching bug or suspender clasp on Will Mitchell's ear, because they were sitting with him at the time of the difficulty at the mite meeting testified about, and that they were not present to testify, and that from this fact the jury could conclude or presume that, if present, her testimony would not coincide with and corroborate that of the defendant, but, on the contrary, would contradict it." The defendant moved to exclude this argument from the jury upon the ground that the law implied under the circumstances no such presumption, but the court denied the motion, to which exception was taken; and this ruling is assigned as the third error.

In

No ground of objection being suggested or made at the trial to the question, "Where is Bama now?" no question is presented that

an appellate court can review. Ever since the case of Gladden v. State, 12 Fla. 562, it has been the settled rule of this court that general objections to questions addressed to witnesses, without stating the precise ground of objection, are vague and nugatory, and are without weight before an appellate court. While it might have been improper and erroneous had the court embodied the argument of the state's counsel in the form of a charge, as being a rule of law, yet because the state attorney reasoned fallaciously or illogically from the facts furnishes no ground for reversal of the trial court for refusing to stop such argument. Juries are not bound by, and do not usually adopt or act upon, illogical deductions from the evidence presented to them in argument by counsel; and it is not reversible error for the court to refuse to interfere with the argument of counsel because it is illogical, or not reasonably inferable from the facts. Railway Co. v. White, 80 Tex. 202, 15 S. W. 808; State v. Toombs, 79 Iowa, 741, 45 N. W. 300.

The circuit judge gave the following charge: "The defendant is presumed to be innocent until his guilt is proven, and, in order that he be convicted, it devolves upon the state to establish his guilt by the evidence beyond a reasonable doubt, and, if you have a reasonable doubt of his guilt or innocence, he should be acquitted; and if you are convinced beyond a reasonable doubt of his guilt, but have a reasonable doubt as to whether it is of a higher or lower offense, he should be convicted of the less offense." The latter part of this charge was excepted to, and is assigned as error. Even if this feature of the charge can be held to be erroneous,-which we do not now decide,-yet, under the circumstances of this case, it is patent that the defendant was not injured thereby, and that therefore it is not reversible error. The jury returned a verdict of murder in the first degree, thereby showing that they entertained no doubt as to whether the defendant was guilty of a higher or lower degree of the crime, and therefore that they could not have been influenced by such charge in arriving at their verdict. From the standpoint of the verdict actually found, the charge was decidedly favorable to the defendant, and he cannot complain of it. Smith v. State, 25 Fla. 517, 6 South. 482; Marshall v. State, 32 Fla. 462, 14 South. 92.

The sixth and last assignment of error is the order of the court overruling the defendant's motion for new trial. The grounds of this motion were (1) that the verdict was contrary to the law as given by the court; (2) the verdict was contrary to the evidence; (3) upon the ground of newly-discovered evidence. In support of the claim of newlydiscovered evidence there were filed two affidavits. the first by one of the counsel for the defendant, Mr. Brainard, in which he swears that he is one of the defendant's counsel; that since said trial he (the affiant)

has discovered new testimony, which, if it had been known by defendant's counsel, they could have had and introduced to the jury. Then the affidavit details as the newly-discovered evidence what purports to have been the evidence of one of the state's witnesses at the preliminary trial of the defendant before a justice of the peace, which conflicted with the evidence of such witness at the trial. The affidavit then states that affiant has used every endeavor to find evidence bearing on the case, and learned the above after said trial in a conversation with one C. M. Jones. Second, an affidavit by C. M. Jones stating that he was present at the preliminary trial of the defendant, and detailing what the state's witness' testimony was on such preliminary trial. In the case of Howard v. State, 36 Fla. 21, 17 South. 84, the following rule has been announced with reference to the granting of new trials on the ground of newly-discovered evidence: "Applications for new trial upon the ground of newly-discovered evidence are looked upon with distrust and disfavor, and are granted only under the following restrictions: (1) The evidence must have been discovered since the former trial; (2) the party must have used due diligence to procure it on the former trial; (3) it must be material to the issue; (4) it must go to the merits of the cause, and not merely to impeach the character of a witness; (5) it must not be merely cumulative; (6) it must be such as ought to produce on another trial an opposite result on the merits. The party applying must make his vigilance apparent; for if it is left even doubtful that he knew of the evidence, or that he might, but for the negligence, have known of and produced it, he will not succeed in his application." Milton v. Blackshear, 8 Fla. 161; Coker v. Merritt's Ex'r, 16 Fla. 416. In the case of Simpson v. Daniels, 16 Fla. 677, the court says: "It is no sufficient proof of diligence in this respect to assert in the affidavit that the defendants have used every endeavor to obtain evidence bearing on the issues involved in the case." Such is the language of the affidavit in this case on the point of diligence used. But besides this, the affidavit in this case is made by one of the counsel in the case, and, though it shows that the evidence was newly-discovered so far as he (the affiant counsel) was concerned, yet it does not show that it was new to the defendant himself; but, on the contrary, from the fact that the substance of it was claimed to have been deposed by the state's witness at the defendant's preliminary examination, it showed on its face that it was known to the defendant himself, since he was personally present at such preliminary hearing, and heard and saw everything that there transpired. Testimony newly discovered by counsel, but all along known to exist by the defendant himself, is not such newly-discovered evidence as will warrant the granting of a new trial.

We think the evidence fully sustains the verdict found, and that it is in full consonance with the law of the cause as given in charge by the court.

Finding no errors, the judgment of the court below is hereby affirmed.

We feel it our duty to mention the fact that, out of the 115 pages of typewritten matter comprising the transcript of the record sent here in this case, 74 pages of it consist of the stenographer's notes of the questions and answers of the witnesses at the trial, certified by such stenographer, that have been improperly copied into the record proper, in addition to the evidence in the case in narrative form duly and properly set forth in the bill of exceptions. Such stenographer's notes, unless evidenced to an appellate court in a bill of exceptions duly certified by the trial judge, cannot be considered by such court, and have no place in the record proper of a cause, and, in the form presented by this record, are a wholly use less waste of time and work, and can subserve no other purpose than that of uselessly increasing the cost to the county, in a case like the present, where the plaintiff in error is insolvent, of the making up of the transcript of record. The clerk of this court is hereby instructed, in taxing the costs of this writ of error, to omit such superfluous matter in estimating the cost of making up the transcript of record.

SCOTT et al., City Council, v. STATE ex rel. GROTHE.

(Supreme Court of Florida. Nov. 19. 1901.) MANDAMUS-PLEADING-OFFICERS-PRESUMP.

TIONS-CITY COUNCIL--QUALIFICA-
TION OF MEMBERS.

1. An alternative writ of mandamus should make a clear prima facie case in favor of the relator by alleging all the essential facts which show the duty and impose the legal obligation on the respondent to perform the acts demanded of him, as well as the facts which entitle the relator to invoke the aid of the court in compelling the performance of such duty or obligation.

2. Public officers must be presumed to have discharged their duty in the absence of a showing to the contrary.

3. Allegations which are equally consistent with a rightful or a wrongful refusal to act will not state a case for mandamus.

4. Respondents, as members of a city council, were judges of the qualification, election, and return of the members of such council. An alternative writ of mandamus to require them to recognize relator as such member, alleging that they refuse so to do, but not negativing the idea that such refusal is because, in the exercise of the discretion confided to them, they have found that he is not entitled to such office, states no case for mandamus.

(Syllabus by the Court.)

Error to circuit court, Marion county; William A. Hocker, Judge.

Application by the state, on the relation of Otto Grothe, for writ of mandamus against G. S. Scott and others, composing the city

council of the city of Ocala. Writ granted, and defendants bring error. Reversed.

Alternative writ of mandamus was issued from the court below to the plaintiffs in error as members of the city council of Ocala directing them to permit the relator, Grothe, to assume the functions and powers and enter upon the duties of alderman at large of said city, or show cause to the contrary. The writ recited that said Grothe then was, and had been for more than five years, a resident of said city, and a qualified elector of same; that said city was a municipality under the laws of this state, entitled to all of the rights and privileges usual thereto; that at an election duly called and held by the said city on the second Tuesday in December, 1899, for the purpose, among other things, of selecting an alderman at large for said city, whose term of office would begin on the second Tuesday in January following, the petitioner received a majority of the votes cast therefor, as shown by the official returns of said election, which returns were afterwards canvassed by the city council of said city, and declared by them to be correct; that afterwards, to wit, on or about February 7, 1900, the city clerk, in pursuance of a writ of mandamus issued by the court below, executed and delivered to relator a certificate in form required by section 52 of election ordinance of said city, showing the result of said election as aforesaid, "which certificate relator alleges is made by said section 52 prima facie evidence of petitioner's (relator's) election to said office in all contests or investigation before said city council"; that on February 8, 1900, relator "duly took the oath of office of alderman at large of said city of Ocala, as prescribed by section 663 of the Revised Statutes of Florida, before and administered by W. S. Bullock, who was at the time the mayor of said city, and duly qualified to administer said oath"; and that, notwithstanding the fact of the petitioner being fully qualified to assume the functions and powers and enter upon the duties of alderman at large of the said city of Ocala, as appears by the facts therein before set forth, and the further fact that the petitioner had filed his certificate of election hereinbefore mentioned, and also his written oath of office, with the clerk of said city, all of which was called to the attention of the city council, said council at a regular meeting held on the evening of March 6, 1900, refused to permit the petitioner to assume the powers or enter upon the several duties of alderman at large of said city of Ocala, although demanded by petitioner at the time. To this alternative writ a demurrer was interposed upon the grounds: First, no such office as alderman at large of the city of Ocala exists; second, the writ shows that relator never qualified as a member of said body as required by law; third, the writ fails to disclose relator's election to the city council of

Ocala; fourth, the writ is too vague and insufficient in alleged facts to justify the relief sought. This demurrer was overruled, and after further pleading and the hearing of evidence the court granted a peremptory writ in conformity with the alternative writ. Respondents sued out writ of error to this court, one of the errors assigned being the order overruling demurrer to the alternative writ.

William Hocker, for plaintiffs in error. L. N. Green, for defendant in error.

MAXWELL, C. (after stating the facts). The alternative writ in this case is directed to the members of the city council of the city of Ocala, commanding them to permit the relator to assume the functions of the office of member of such council. In order to support such mandate it is necessary that the allegations of the alternative writ should make a clear prima facie case in favor of the relator by "alleging all the essential facts which show the duty and impose the legal obligation on the respondent to perform the acts demanded of him, as well as the facts which entitle the relator to invoke the aid of the court in compelling the performance of such duty or obligation." Puckett v. State, 33 Fla. 385, 14 South. 834.

Section 3, c. 4089, Acts 1891, entitled “An act to extend and enlarge the boundaries and powers of the municipality known as Ocala, Marion county, Florida," provides that "the city council shall judge of the qualifications and elections and returns of its own members, and shall prescribe rules for the determination of contested elections." The writ, therefore, is directed to a body having the power to judge of the qualifications, elections, and returns of its own members, ordering that it recognize the relator as the successful candidate in the election. Many courts hold that mandamus will not, under such circumstances, lie to a body of this character (Board v. Minturn, 4 W. Va. 300; Williams v. Common Council, 33 N. J. Law, 111; Peabody v. School Committee, 115 Mass. 383; Hildreth v. Heath, 1 Ill. App. 82; Mayor, etc., v. Rainwater, 47 Miss. 547; High, Extr. Rem. § 403); but if it be that in this state, under the decision of State v. Teasdale, 21 Fla. 652, mandamus will lie in such cases, still the alternative writ must show the facts establishing a clear right. If there are circumstances in this case which will support such a writ, they must appear from the allegations of the writ. The respondents, as officers of the city, must be presumed to have discharged their duty, in the absence of allegations to the contrary. All of the allegations of the writ as filed herein are consistent with the idea that the respondents, in the exercise of their functions as judges of the election in question, rightfully refused to recognize the election of the relator, because they had previously, in accordance with the powers

conferred on them, determined that relator was not rightfully entitled to the office of councilman at large by virtue of the election and qualification alleged in the writ. Allegations which are equally consistent with a rightful or a wrongful refusal to act will not state a case for mandamus. The writ in such a case "must contain not only the affirmative allegation of proceedings necessary to entitle the party to the process prayed for, but it must also be averred that other facts which would justify the omission complained of do not exist." Hoxie v. Commissioners, 25 Me. 333; Goss v. Common Council, 44 Mich. 319, 6 N. W. 684.

The demurrer to the alternative writ should have been sustained, and the judgment is reversed, and the case remanded, with directions that such order be entered, and for further proceedings in accordance with law.

GLEN, C., concurs.

PER CURIAM. The foregoing opinion has been examined by the court, and is hereby approved and adopted and ordered to be filed as the opinion of the court in said cause.

SAVANNAH, F. & W. RY. CO. v. WILLETT. (Supreme Court of Florida. Oct. 15, 1901.)

MASTER AND SERVANT-CONTRACT OF EMPLOYMENT-ACTION FOR BREACH.

A declaration upon which a plaintiff founds his right of recovery must allege every fact that is essential to his right of action; and when, in an action for breach of contract to employ, the declaration does not state the duration of plaintiff's employment, nor facts from which it may be inferred, or show it to be indefinite, or to be discretionary with either party, it must be taken as an employment at will, terminable by either party; and if either party terminates it no action can be maintained by the other party for a breach of such contract because of such termination.

(Syllabus by the Court.)

Error to circuit court, Orange county; John D. Broome, Judge.

Action by William E. Willett against the Savannah, Florida & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

William E. Willett, as plaintiff, brought suit in the circuit court of Orange county, Fla., against the Savannah, Florida & Western Railway Company. On the 6th day of February, 1896, the plaintiff filed his declaration stating that, being in the employment of the Jacksonville, St. Augustine & Indian River Railroad Company as a conductor, he was desirous of bettering his condition in life and of getting larger pay; that he had previously applied to the South Florida Division of the Savannah, Florida & Western Railway Company for employment as conductor; that the defendant company asked him to make formal application, and that he did so, telling them in that application

that he was employed by the Jacksonville, St. Augustine & Indian River Railroad Company, and that his sole object in leaving said company and seeking employment from defendant was to better his condition in life; that defendant informed the plaintiff it would give him employment as conductor if he would report at once for duty; that thereupon the plaintiff, in compliance with the notice from the defendant, tendered his resignation as conductor of the Jacksonville, St. Augustine & Indian River Railroad Company, and, being relieved from duty, proceeded to Sanford, and reported to the defendant corporation, and was agreed to be employed by the proper officer of the defendant corporation, and instructed to proceed on the line of the defendant's road, and to study the same, and to be examined, and was then and there assigned to a route on the Silver Springs, Ocala & Gulf Railway branch of the defendant corporation in the state of Florida; that in pursuance of said instructions and agreement for employment he left Sanford on defendant's train for the purpose of entering on said duties, and on arriving at Kissimmee received a telegram from defendant corporation instructing him to return to Sanford, and on returning he was informed by the proper officer of said corporation that it would not employ him, as it had agreed to, unless the plaintiff could procure a release or recommendation from the Jacksonville, St. Augustine & Indian River Railroad Company, which release or recommendation the defendant corporation had not demanded or required from the plaintiff at the time the defendant agreed to employ him; that at the time the defendant agreed to employ him the defendant well knew he was employed by the Jacksonville, St. Augustine & Indian River Railroad Company, and had sought employment from the defendant for the purpose of bettering his condition in life, and receiving increased remuneration for his services; that the defendant utterly failed and refused to carry out its agreement of employment, although he was ready, and had always been ready, to proceed to work, and although the plaintiff was and is an experienced railroad man, having had 19 years' experience, and having well and faithfully performed his duties as such on every railroad on which he was employed, and the plaintiff having been induced to resign and surrender the position he held as conductor on the Jacksonville. St. Augustine & Indian River Railroad Company, and whereby, and by refusal of the defendant to carry out its agreement to employ him, he, although diligently seeking employment, was thrown out of and deprived of employment for the space and term of 12 months, and was unable to procure employment from any other railroad during said period of time, to the damage of the plaintiff in the sum of $1,500; wherefore he sues, and claims $1,500 damages.