Puckett, the tax collector of the city of Orlando, for a license required by the city of a person carrying on the business of a dealer in such liquors in said city, and tendered to him, as such collector, the money for such license tax, and all costs and charges for issuing the same, but "the said tax collector refused, and still refuses, to issue to the said petitioner the said license, as is the duty of the said collector, by means whereof the petitioner was and is deprived of and prevented from carrying on his business as such dealer in spirituous, vinous, and malt liquors in the said city of Orlando, as is his just and legal right to do." A motion was made to quash the alternative writ for the following reasons, viz.: (1) The allegations show no sufficient facts to justify the interposition of the court. (2) The allegations are vague, uncertain, and inconsistent. (3) The writ does not show that relator, at the time of the tender alleged, had complied with the law and ordinances in such cases, nor is there any offer to comply therewith. (4) The writ does not properly allege that respondent was duly authorized or empowered to issue the license demanded. (5) No reason is set forth in said writ as the cause of respondent's refusal, and the court will not infer that he willfully refused to do his duty. (6) Relator does not allege that he has no other adequate legal remedy. This motion was overruled, respondent answered, a demurrer to the answer was sustained, and an appeal taken from the decision of the court ordering a peremptory writ of mandamus to issue.

We will consider the assignment of error based upon the ruling of the court on the motion to quash the writ. On this point we are confined to the allegations of the alternative writ, the substance of which we have given. The alternative writ in mandamus proceedings must show a clear, prima facie case in favor of relator. State v. Finley, 30 Fla. 302, 11 South. 500; Town of Enterprise v. State, 29 Fla. 128, 10 South. 740. In order to make out a prima facie case, the writ should allege 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 that entitle the relator to invoke the aid of the court in compelling the performance of such duty or obligation. High, Extr. Rem. § 536; Canal Trustees v. People, 12 II. 248; Lavalle v. Soucy, 96 Ill. 467; Hambleton v. Town of Dexter, 89 Mo. 188, 1 S. W. 234; King v. Bishop of Oxford, 7 East, 345; Holland v. State, 23 Fla. 123, 1 South. 521.

All of the essential allegations in the alternative writ before us may be succinctly stated as follows, viz.: That the relator applied for and obtained from the proper officials a state and county license to retail liquors, wines, and beer in the city of Orlando, and then made application to respondent, as tax

collector of said city, for a license required by it to carry on such business within the corporate limits, and that he refused to issue the license, although the license tax and all costs were tendered to him, and it was his duty to issue the same. It is not contended that the writ is defective because it fails to allege that relator had complied with the prerequisites in reference to obtaining the state and county license from the county officials, but it is conceded in the brief of counsel for appellant that said license was duly obtained. We will not, therefore, devote any attention to that part of the writ in reference to obtaining the state and county license, but will confine ourselves to the allegations in reference to the duty of respondent to issue the license.

There is no statutory provision making it the duty of respondent, as tax collector of the city of Orlando, to issue the license demanded of him. The city was invested with authority to impose an occupational tax on relator, not exceeding 50 per cent. of the state tax, and also to require him to procure from the city a license for carrying on his said business within the city limits. The authority to require the city license was acquired under the general law for incorporating cities and towns, and by virtue of such authority the city could by ordinance impose the duty of issuing the license upon the tax collector, or some other municipal officer. The statute giving the authority to require the license does not prescribe how it shall be issued. The writ of mandamus can only be invoked to compel the performance of a legal duty appertaining to an official or quasi-official function; and, where the relator comes into court asking for such relief, the rule requires, as we have seen, that the alternative writ should allege all the essential facts which show such duty. In the case before us we think the allegations are insufficient. It is stated that the relator applied to respondent for a license required by the city, but it is not alleged that the city in any authorized way imposed the duty of issuing the license upon respondent, nor does it appear that he was under any duty imposed by law to issue it. The mere allegation of a duty to issue the license, without stating how the duty was imposed, is not sufficient. State v. Finley, supra. If it was the duty of the respondent, under the ordinances, to receive the tax money and issue the license required, it should have been stated, but this was not done. The alternative writ being defective for the reasons given, the motion to quash should have been sustained; and, this being the case, the other questions presented are not open for consideration.

The judgment will therefore be reversed, with directions to sustain the motion to quash the alternative writ, and such will be the order entered.

BOYD V. STATE. (Supreme Court of Florida. March 1, 1894.) CRIMINAL LAW-DEFENDANT'S COSTS-CONTINUANCE-REASONABLE DOUBT.

1. The question of the unconstitutionality of a statute will not be considered at the instance of one whose rights are not shown to be affected by the statute. The principle applied as to the provision of section 3, c. 4120, Acts 1893, denying compensation and mileage to defendants' witnesses in criminal cases.

2. An affidavit for a continuance that does not state the facts to be testified to by the absent witness, but gives, in effect, only the opinion of the witness as to the guilt of the accused, is insufficient.

3. Where there is no abuse of a sound discretion by the trial court in refusing a continuance, its action should not be disturbed.

4. It is proper to refuse to instruct a jury that, if any one of them entertained a reasonable doubt of the guilt of the accused, it would be the duty of the jury to aequit.

(Syllabus by the Court.)

Error from circuit court, De Soto county; Banon Phillips, Judge.

John A. Boyd was convicted of unlawfully altering the brand of an animal, and brings error. Affirmed.

Frank Clark, for plaintiff in error. W. B. Lamar, Atty. Gen., for the State.

RANEY, C. J. The indictment was found on the 31st day of October at the fall term, 1892, of De Soto circuit court, and charges the accused with having on September 10, 1892, in De Soto county, feloniously and fraudulently changed the mark of a certain marked animal, a steer, the property of one William Worley, the alleged change being from an upper square and under bit in one ear, and under slope in the other ear, to a crop, split, and under bit in one ear, and bolt in the other ear, of the animal; and the changes being charged to have been made with intent feloniously and fraudulently to claim the same, and to prevent the identifiIcation of the animal by the true owner.

It appears from the bill of exceptions that on October 24th, at the fall term, 1893, the defendant presented a motion wherein he asked and demanded, as his right under the constitution of the state, that the judge should sign an order directing the clerk of the court to issue, and the sheriff to serve, a subpoena for a witness, G. W. Randall, the motion being accompanied with an affidavit made in triplicate by the defendant, and stating that the defendant was charged with the offense stated, and that he was utterly insolvent, and unable to pay the costs of his defense or of procuring the attendance of his witnesses, and that Randall was a witness, and would testify that he was with deponent at the time when said offense is charged to have been committed, and that defendant did not commit the same, and that the witness was necessary to defendant's defense, and he could not procure his attendance without subpoena. The judge

made an order on the same day that "the motion is refused in so far as the state is required to pay defendant's witness fees, but the court will grant compulsory process for all defendant's witnesses upon request of defendant's counsel," and the defendant excepted.

It also appears that on the 26th day of the same month, and at the same term, the cause coming on to be tried, the defendant moved for a continuance, supporting the motion by his affidavit, filed the same day, to the effect that G. W. Randall, who lived in De Soto county, was a material witness for him, and, if present, would testify that he was with deponent at the time the offense was charged to have been committed, and that defendant did not commit the same; that defendant on October 24, 1893, filed a praecipe for the witness with the clerk of the court, and the clerk issued a subpoena for him, and placed it in the hands of the sheriff of the county, and that the sheriff had informeu defendant that the subpoena had been sent to the witness, but that no return had yet been made; and, further, that the witness was not absent by the procurement or consent of defendant, directly or indirectly given, and that defendant knows of no other person by whom "said facts" could be established, and that he expected to procure the attendance of Randall at the next term of the court. The motion having been overruled, the defendant excepted.

The trial proceeded, resulting in a verdict of guilty, upon which verdict, and after the overruling of motions in arrest of judgment and for a new trial, the accused was sentenced to imprisonment in the state prison for two years.

Counsel for the plaintiff in error rests the former of the above motions on the eleventh and fourteenth sections of the declaration of rights, the former of which provides, so far as it need be stated, that in all criminal prosecutions the accused shall have the right of a speedy and public trial by an impartial jury, in the county where the crime was committed, and have compulsory process for the attendance of witnesses in his favor; and the latter is that no person shall be compelled to pay costs except after conviction on a final trial. He admits, in effect, that the act of June 7, 1887, c. 3702, entitled "An act to provide for and regulate the payment of costs and expenses in certain cases of criminal prosecution by the state," is repealed, at least in so far as the matter now before us is concerned, but insists that the act of May 30, 1893, c. 4120, entitled "An act to prescribe the compensation to be paid jurors and witnesses serving in the courts of this state, and to provide for summoning defendant's witnesses," is, in so far as it enacts that no compensation or mileage shall be paid by the state to defendant's witnesses in criminal cases (section 3, c. 4120, Acts 1893), in con

flict with the indicated provisions of the organic law. The further position is also taken that the state has no right, either legal or moral, to compel a citizen to attend court, either as a juror or a witness, without adequate compensation. Counsel do not invoke the provision of the constitution (section 9, art. 16) that in all criminal cases prosecuted in the name of the state where the defendant is insolvent or discharged the state shall pay the legal costs and expenses, including the fees of officers, under such regulations as shall be prescribed by law. Buckman v. Alexander, 24 Fla. 46, 3 South. 817. As the subject impresses us, the defendant is not in a position to invoke a decision on any of these alleged invasions of constitutional rights, and for the reason that he does not show that he has failed to secure compulsory process, or that he has been compelled to pay any costs, or that the absence of the witness or failure to secure his presence or to serve the subpoena, if it was not served, was in any wise due to the nonpayment of, or inability to pay, fees to the witness. It is apparent that the subpoena was issued, and was in the process of execution by the sheriff, and it does not appear that the defendant applied to the court for a postponement of the trial for a reasonable time, until the execution of the writ could be had and the result learned. Under this state of facts, in which it is not shown that the defendant has been harmed by what he complains of, we cannot enter upon a consideration of the mooted questions. County Com'rs of Franklin Co. v. State, 24 Fla. 55, 3 South. 471.

Passing to the affidavit for a continuance, it is materially deficient in that it does not state the facts to be testified to by the witness as supporting the conclusion that the defendant "did not commit" the offense. If the witness saw the changes in the marks made, the affidavit should state when they were made, and, if defendant was present, explain what his conduct as to the transaction was; or, on the other hand, if the defendant was not present, and had nothing to do with it, that such was the fact. As it is, the affidavit states only the opinion of the witness as to the guilt of the accused, and does not enable the court to pass upon the legal effect of what it may be in his power to testify. It is unnecessary to comment upon the unexplained delay until October 24, 1893, the second day of the second term of the court after the finding of the indictment, in applying for a subpoena, or the considerations suggesting themselves as against a continuance till another term, while a subpoena returnable to the pending term was in the hands of the sheriff under the circumstances stated in the affidavit. No abuse of a sound discretion by the trial court is shown, and its action in the premises should not be disturbed. Gladden v. State, 12 Fla. 562, 13 Fla. 623; Blige v. State, 20 Fla. 742; Denham v. State, 22 Fla. 664; Dansey v. State, 23 Fla. 316, 2

South. 692; Hicks v. State, 25 Fla. 535, 6 South. 441; Newberry v. State, 26 Fla. 334, 8 South. 445.

The refusal of the judge to charge the jury: "If all of you, or either of you, upon consideration of the whole evidence in the case, have in your minds or mind a reasonable doubt of the defendant's guilt, under the charge given you by the court, it will be your duty to give the defendant the benefit of said doubt, and acquit him," is also assigned as error. The meaning of this is that, if any one juror entertained such a doubt, the other five jurors, although they were satisfied beyond any reasonable doubt of the guilt of the accused, should surrender their judgment to the doubt of the one, and concur in a verdict of acquittal. The judge was right in refusing to give the instruction, and had already charged in the language which is ordinarily used and secures to each juror the exercise of his individual judgment.

It is unnecessary to set out the testimony; we have all considered it carefully, and are satisfied that it sustains the verdict, and is such as to preclude the interference of an appellate court.

The judgment is affirmed.

LOVETT v. STATE. (Supreme Court of Florida. March 6, 1894.) HOMICIDE-FORMER JEOPARDY-CHANGE IN STATUTE PENDING INDICTMENT-APPEAL. 1. Where a judgment entered upon a verdict of guilty as charged in the indictment, on a trial, since the Revised Statutes went into effect, of an indictment for murder, has been reversed by this court on writ of error, because the verdict did not ascertain the degree of the crime, and a new trial awarded, the accused can be tried again upon the same indictment, and such second trial will not put him in jeopardy a second time for the same offense, within the meaning of the constitution.

2. The accused was indicted, tried, and convicted of murder in the first degree before the Revised Statutes went into effect. The judgment entered on this conviction was, upon writ of error to this court, reversed, and upon a second trial on the same indictment, after the Revised Statutes took effect, a motion was made to quash the indictment on the grounds that by the said statutes the constituent elements of the offense charged had been changed in this: that the degrees in manslaughter embraced in said offense have been done away with, and that the accused was thereby deprived of rights and benefits secured to him under the law as it existed when the offense was committed; and also that by said statutes the number of peremptory challenges allowed the accused under the former law had been cut down, and the number of such challenges permitted to the state had been increased, to the detriment of the accused. This motion was overruled. Held, that the ruling was correct, and that upon the indictment the accused stood for trial under the law in force when the offense was committed, so far as the essential elements of the crime itself were concerned, and that the subsequent law made no changes in this respect as to the offense with which the accused was charged; that, as to the changes in reference to the number of peremptory challenges, they relate to the remedy, and afford no ground for quashing the indict

ment.

3. Where a motion in arrest of judgment has been overruled, and there is no bill of exceptions, and nothing in the record to show that the grounds alleged in such motion are true, this court cannot assume that they ever existed. The mere recital of them in the motion affords no evidence that they are true.

(Syllabus by the Court.)

Error to circuit court, Duval county; R. M. Call, Judge.

Dave Lovett was convicted of murder, and brings error. Affirmed.

R. S. Cockrell, for plaintiff in error. William B. Lamar, Atty. Gen., for the State.

MABRY, J. This is the third time that this case has been brought before us on writ of error. Lovett v. State, 30 Fla. 142, 11 South. 550, and 31 Fla. 164, 12 South. 452. The verdict on the second trial (31 Fla. 164, 12 South. 452) found the defendant guilty as charged in the indictment, with a recommendation of mercy to the court; and the judgment entered thereon was reversed, and the case remanded for a new trial, because the verdict failed to ascertain the degree of the crime of which the defendant was convicted. Hall v. State, 31 Fla. 176, 12 South. 449. When the case was brought on for another trial the defendant interposed a plea setting up his arraignment and the organization of the jury upon the second trial, and the submission of the issue to the jury; evidence on behalf of both the state and defendant being also submitted, and the jury charged to try said issue. The plea further

alleges as follows: "And thereupon, the said evidence being closed, said jury retired under the charge of this court to consider of their verdict, whereupon this defendant became and was entitled to a deliverance from and by said jury, so selected, upon the issue so joined; and this defendant avers that the said jury was discharged from the consideration and determination of said issue without rendering a verdict thereon, and without the consent of this defendant, and without necessity for such discharge." The proceedings and minutes of the court of record in the cause were referred to and made a part of the plea. A demurrer to this plea was sustained.

The record shows that the jury found the defendant guilty as charged in the indictment, with a recommendation of mercy to the court. The contention of counsel for plaintiff in error is that the verdict of guilty as charged in the indictment amounted to no verdict at all, and that the discharge of the jury upon its rendition operated as a liberation of the defendant. This contention is without legal support. It is based upon the theory that the defendant was twice put in jeopardy for the same offense. It is said by Dillon, J., in State v. Redman, 17 Iowa, 329: "In general, it may be said that jeopardy begins when a trial jury, upon a sufficient indictment, in a court of competent jurisdiction, has been impaneled and sworn

a juror's illness prevents him from sitting further on the trial; * * * or if the prisoner's sudden illness incapacitates him from attending or managing his defense; * or if the jury, after full deliberation, are unable to agree; * or if the defendant is erroneously convicted, and obtains a reversal of the judgment. In all such cases he may be put upon his trial again, and cannot claim a discharge or acquittal because a jury has been once before impaneled and sworn to try the cause; and we understand the settled doctrine to be that, where the verdict is a nullity (or so defective that no judgment can be rendered upon it), the defendant may again be put upon his trial, certainly where the verdict was intended to be one of conviction, for in such case it is rather a mistrial than a legal putting in jeopardy." In the case just quoted from, being for grand larceny, it was necessary, under the law of Iowa, for the jury to ascertain the value of the property, that the court might know with certainty the grade of the offense of which the defendant was convicted. The verdict rendered found the defendant guilty, which was accepted by the court, and the jury discharged. On the motion of the state the verdict was set aside, and the defendant excepted. When the case came on for another trial the defendant pleaded the above facts in bar of further prosecution, and to this plea a demurrer was sustained. The question of the exemption of the defendant from further prosecution was presented to the court, and fully discussed. Many decisions are cited and reviewed in the opinion, and the conclusion that the defendant could be tried again fully sustained. See, also, People v. Travers, 73 Cal. 580, 15 Pac. 293; People v. Olwell, 28 Cal. 456. In the case of Nolan v. State, 55 Ga. 521, cited by counsel for plaintiff in error, where an accused was put on trial for a capital offense, and, while he was confined in jail, in the absence of his counsel, and without his consent, the jury returned a verdict of voluntary manslaughter, and were discharged, it was held that it amounted to no verdict, and operated as a discharge of the accused. The accused in that case made a motion to set aside the verdict as being illegal, and a distinction is drawn in the decision between a motion to set aside a verdict and a motion for a new trial. The bill of rights in the Georgia constitution declared that no person shall be put in jeopardy of life or liberty more than once for the same offense, save on his or her own motion for a new trial, after convic tion, or in case of mistrial. Our bill of rights declares that "no person shall be subject to be twice put in jeopardy for the same offence, nor compelled in any criminal case

to be a witness against himself, nor be deprived of life, liberty or property without due process of law." Under the Georgia constitution it was held that "two reasons only are recognized by the law as justifying the discharge of the jury before they have agreed upon a verdict and legally returned it into court, to-wit: the prisoner's consent, or necessity in some of its various forms, one of which is mistrial." When the accused in the case before us was found guilty as charged in the indictment, with recommendation of mercy, judgment was entered against him upon that verdict, and he sued out a writ of error to this court. The second error assigned here was "the court erred in pronouncing the sentence upon this plaintiff in error as pronounced." The decision on this assignment of error was that the judgment was void because the verdict failed to ascertain and declare the degree of the crime of which the accused was convicted, and the case was remanded, and a new trial or dered. Under the decision and authorities cited in the case of State v. Redman, supra, we think the demurrer to the plea filed by the defendant in the case before us was properly sustained.

The defendant also moved to quash the indictment, to set aside the verdict, and to arrest the judgment; and these motions were overruled. The motion to quash alleges that the defendant is, by the indictment preferred against him, which was before the adoption of the Revised Statutes, charged not only with statutory murder in the first degree, but also with all the degrees of manslaughter, and the other offenses included in the indictment when the same was found; that since the finding of the indictment the constituent elements of the offenses charged have been changed by the Revised Statutes, and "that degrees in manslaughter have been done away with by the Revised Statutes in such sort that this defendant cannot now have the benefit of the milder and changed penalties secured to him by the Revised Statutes, enacted in this behalf." Another ground of this motion is that by the Revised Statutes the number of peremptory challenges allowed the accused when the indictment was found has been cut down, and the number allowed the state has been increased, and that this change affects to a serious degree the substantial rights of the accused. The indictment against the ac cused alleges that the offense was committed before the Revised Statutes went into effect, and the indictment was found before that time. It is entirely clear, both under the constitution (article 3, § 32) and the Revised Statutes (section 2353), that the constituent elements of the crime for the commission of which the accused was indictedit having been committed before the Revised Statutes went into effect-have not been changed or attempted to be changed. Upon the indictment the accused stood for trial un

der the law in force when the offense was committed, so far as the essential elements of the crime itself are concerned, and no changes in these respects have been made by the subsequent law. In view of what has already been said in this court on this subject, further discussion is unnecessary. Reynolds v. State (decided at this term) 14 South. 723, and authorities therein cited.

It is not contended that the indictment is bad under the law as it existed at the time it was found, and the result is that no sufficient reason was shown for quashing the indictment. It may be stated that, even if the change in reference to the number of peremptory challenges allowed in criminal cases was unauthorized so far as it applies to past offenses, this would be no ground for quashing the indictment; but it has been decided here that the change in reference to peremptory challenges appertains to the remedy, and does not affect the essentials of the crime itself. Mathis v. State, 31 Fla. 291, 12 South. 681.

The grounds alleged in the other motions are: First. That unlawful homicide, of which the defendant was convicted, is created and defined by statute; and since the killing charged in the indictment the constituent elements of unlawful homicide, and the procedure applicable thereto, have been changed by legislative enactment, to the disadvantage of the accused, and the impairment of his rights as they existed at the time the alleged offense was committed. Second. The indictment under the law when found charged manslaughter in the third degree punishable by imprisonment for a term not more than four nor less than two years, but at the time of trial, under the procedure then governing manslaughter in the third degree, had ceased to be a constituent element of homicide, whereby the accused, by the operation of an ex post facto law, was denied the right, secured to him by the former law, of having the jury consider whether or not the alleged killing was done in the heat of passion, without a design to effect death by a dangerous weapon. Third. The court erred in giving severally the charges given to the jury. Fourth. The court erred in sustaining demurrer to the plea demurred to by the state. Fifth. The record in the case showed that the prisoner has been confined, under the sentence of the law pronounced by this court, in the state penitentiary, in partial satisfaction of the sentence pronounced by this court for the identical offense for which, if the verdict stands, he must suffer the death penalty.

The fourth ground, relating to the action of the court on the demurrer to the plea, has already been considered. The record before us does not afford any information in reference to the confinement of the accused in the state penitentiary, and hence we need say nothing about the fifth ground of the motion. The bill of exceptions does not con