Inference which could be drawn from the facts by reasonable minds,-the inference that defendant was not a partner? Unless both questions can be answered affirmatively, the court's action was erroneous. In our opinion, the issue should have been submitted to the jury. Reversed, and remanded for a new trial.

SAMMIS v. BENNETT.

(Supreme Court of Florida. Nov. 27, 1893.) APPEAL TIME OF TAKING CONSTITUTIONAL LAW ENACTMENT OF STATUTE TIME OF TAKING

EFFECT.

1. The provision of the act of May 11, 1893, (chapter 4130,) that all appeals in chancery, whether from final decrees or interlocutory orders, must be taken within six months after the entry of the decree or order appealed from, has no retroactive effect, but applies only to deerees and orders entered after the act became operative. The act took effect August 1, 1893, or 60 days after the final adjournment of the legislature.

2. The purpose of section 18 of article 3 of the constitution, that a statute shall not take effect until 60 days from the final adjournment of the legislature at which it may be enacted, unless otherwise specially provided in the act, was to enable the people to become acquainted with the provisions of legislation, and not to require them to govern their actions by the same before it has become operative.

(Syllabus by the Court.)

Appeal from circuit court, Duval county; W. B. Young, Judge.

In the matter of the probate of an alleged will of Mary Williams, alias Bennett. A decree of the circuit court affirmed a decree of the probate court revoking the probate of the will, and Albert C. Sammis appealed, and moves for a supersedeas to the decree appealed from. Granted.

M. C. Jordan, for appellant. Walker & L'Engle, for appellee.

RANEY, C. J. On the 26th day of May, 1892, a decree was rendered in the circuit court of Duval county affirming, on appeal, a decree which had been previously made by the county judge, revoking the probate of an alleged last will and testament of Mary Williams, alias Mary Bennett, and from the stated decree of the circuit court the above-named Sammis entered an appeal in October of the present year to the January term, 1894, of this court, and now he moves for a supersedeas to the decree appealed from. Section 1280, Rev. St., provides that appeals from the circuit court to the supreme court, in matters arising before the county judge and pertaining to his probate jurisdiction, shall be governed in all respects by the law and rules regulating appeals in chancery. Prior to the enactment of chapter 4130, Laws 1893, approved May 11, 1893, the period of time allowed for taking such appeals to this court was two years, (section 1456, Rev. St.;) but the mentioned statute of the present year, "An act to limit the time within which ap

peals in chancery may be taken," provides that "all appeals in chancery, whether from final decrees or interlocutory orders, must be taken within six months after the entry of the final decree or of the entry of the interlocutory order or decree appealed from." This act became of force, under section 18 of article 3 of the constitution, on August 1st, or 60 days after the final adjournment of the legislature, its session of 1893 having closed on the second day of June. It was the purpose of section 1280, Rev. St., that the time for taking appeals like the one before us should conform to that prescribed for appeals from chancery decrees of the circuit court.

The purpose of section 18 of article 3 of the constitution, that a statute shall not take effect until 60 days from the final adjournment of the legislature at which it may have been enacted, unless it is otherwise specially provided in the act, is, according to what we deem the better view, to enable the people to become acquainted with its provisions, but not to require them to govern their actions by the law before it becomes operative. It was contemplated that, by the lapse of the 60 days, the statutes of the session of the legislature would be published and be accessible to the public, but they are not operative laws until the stated period has expired, and no one can be charged with notice of them rea sonably until it does expire, or, what is the same, until they go into effect. Price v. Hopkin, 13 Mich. 318. This statute, if applicable to the case at bar, took the appellant's right of appeal away from him upon its taking effect, or immediately upon his being charged with notice of its enactment, or, in substance, without notice. In the case of ordinary statutes of limitation this could not be done, even before the matter was regulated, as it is now, by our organic law. On the contrary, there had to be reasonable time allowed for bringing action. Spencer v. MeBride, 14 Fla. 403; Cooley, Const. Lim. 451. It is now provided by our constitution that "no statute shall be passed lessening the time within which a civil action may be commenced on any cause of action existing at the time of its passage," (section 33, art. 3;) but this view we take of the legislation of the present year relieves us from deciding whether or not statutes limiting appeals are within this organic provision. That statute has, in our judgment, no relation to decrees entered prior to its taking effect, but only to those entered subsequently thereto. Statutes will not be given a retrospective effect unless their terms show clearly that such an effect was intended. The appeals referred to are those from decrees that might be entered subsequently to the act's taking effect, and the language does not justify the conclusion that any other than subsequent decrees are meant. Its language is not such as to justify the conclusion that the legislature intended to take away, without notice, from parties situated like the appellant, the right to have ad

verse decrees reviewed by a court which has been expressly provided by the constitution with jurisdiction for such purpose. It does not show that such hardships and injustice were intended, and it is not reasonable to impute to the lawmaking power such a purpose, in the absence of words clearly evincing that intent. McCarthy v. Havis, 23 Fla. 508, 2 South. 819; Capelle v. Baker, 3 Houst. 344; End. Interp. St. §§ 271, 272, 289; State v. Auditor, 41 Mo. 25; White v. Blum, 4 Neb. 555; State v. Stein, 13 Neb. 529, 14 N. W. 481; Dewart v. Purdy, 29 Pa. St. 113; Taylor v. Mitchell, 57 Pa. St. 209; Gaston v. Merriam, 33 Minn. 271, 22 N. W. 614. The motion will be granted, and the proper order made.

1. The necessity, to a suit in error, of lodging the writ of error in the court rendering the judgment which it is sought to have reviewed, is not supplied by an order of that court allow ing such writ, and directing that it shall operate as a supersedeas to the judgment, and a compliance with the provisions of the order as to the supersedeas bond.

2. If it be that a writ of error can ever be issued and served nunc pro tunc, after the lapse of the time allowed by law for bringing suits in error, the default must be attributable solely to official delinquency in the premises. (Syllabus by the Court.)

Error to circuit court, Taylor county; John F. White, Judge.

Action by Knight & Knight against James X. Towles. There was judgment for defendant, and on plaintiffs' motion a supersedeas was granted, and defendant moves to vacate the supersedeas, and plaintiffs move for issue and service of a writ of error nunc pro tunc. Motions denied.

J. N. Stripling and W. B. Lamar, for plaintiffs in error. Blackwell & Rees, for defend

ant in error.

RANEY, C. J. Towles moves to vacate the supersedeas granted by the circuit judge. No writ of error has been lodged in the clerk's office of the court rendering the judgment, nor has any such writ even been issued. The period allowed for bringing error-six months from the date of the judgment-had expired when this motion was made, the judgment having been rendered April 5, 1893. The order of the circuit judge allowing a writ of error and directing that it should operate as a supersedeas, and his approval of the supersedeas bond, do not supply the necessity which a writ of error, and its service by lodging it with the court rendering the judgment within at least the time allowed for taking writs of error, are to the appellate court's jurisdiction of the cause. There being no writ of error either

before or after the supersedeas proceedings, there is no supersedeas to the judgment of the lower court. State v. Mitchell, 29 Fla. 302, 10 South. 746; Crippen v. Livingston, 12 Fla. 638. Having, for the reasons stated, no jurisdiction, we must deny the motion. and it will be ordered accordingly.

Motion to Vacate Judgment.

On the 13th instant (November, 1893) Knight & Knight entered a motion as follows: "Come now the plaintiffs, and suggest to the court that on the 7th of April, A. D. 1893, this cause was tried in the court below, and a judgment against them; that on the day last aforesaid the plaintiffs duly applied to the clerk of said court for a writ of error, all of which duly appears by the record of the proceedings on file in this court, and moved the court to vacate the judgment rendered herein on the 6th instant upon the facts orally stated to the court and admitted by defendant, and to order the issuance of said writ of error now, as of the 7th day of April, A. D. 1893, and that the same be filed in the office of the clerk of the circuit court of Taylor county as of said 7th day of April, 1893."

When we filed the opinion on the 6th instant, we were perfectly conversant with "the record of the proceedings on file in this court," (the same having been filed October 14, 1893,) in so far as it bears upon the question then and now before us, and all it shows as to applying for a writ is set forth in the former opinion, and of the insufficiency of the same to supply the omission to obtain and lodge a writ with the court rendering the judgment we are entirely satisfied. It, in view of our decisions cited in that opinion, is no new question of practice here. If it be that a writ of error can be issued and served nunc pro tunc, and the appellate jurisdiction of this court saved, where the omission to issue and serve it within the time limited by law for so doing is attributable solely to the default of the clerk, still no such case is shown here. The decision in Jackson v. Haisly, 27 Fla. 205, 9 South. 648, and the authorities cited by counsel for movants, fall short of their case. They are: Austin v. Scovill, 34 La. Ann. 484; Chaffe v. McIntosh, 36 La. Ann. 824; Hudgins v. Kemp, 18 How. 530; Elliott's App. Proc. § 117; Wilkes v. Perks, 5 Man. & G. 376; Nazer v. Wade, 1 Best & S. 728; Mcllhaney v. Holland, 111 Pa. St. 634, 5 Atl. 731; Underwood v. Underwood, 12 Fla. 432; Smith v. Curtis, 19 Fla. 786; Booten v. Bank, 67 Ga. 358. The Revised Statutes have made no changes as to writs of error that render the cases cited in the former opinion at all inapplicable.

It seems there was an agreement between counsel which, had it been properly brought to our attention, would have caused us to defer for at feast a week the decision made

on the 6th instant. Still, whoever may have been in fault as between the parties to that agreement, and though we make no point on it here as influencing our action, the court must not be expected to open its decision duly made, where neither party has taken any step to inform the court in due time of such agreement.

The motion is denied.

Nov. 20, 1893.)

MARSHALL v. STATE. (Supreme Court of Florida. MURDER-DEGREE EVIDENCE REVIEW ON APPEAL-INSTRUCTIONS-ERROR-WHEN NOT PREJUDICIAL-DECLARATIONS-ADMISSIBILITY.

1. Danger to many or "others" is, under section 2380. Rev. St., not an essential to murder in the second degree, as it was under sec tion 2, p. 350, McClel. Dig., and now proof of an intent upon the part of the accused to kill a particular individual or "another" does not exclude a conviction of murder in the second degree. Johnson v. State, 4 South. 535, 24 Fla. 162, approved and distinguished.

2. The fact that the evidence in a case may be sufficient to sustain a verdict of murder in the first degree will not of itself preclude a conviction of murder in the second degree as this degree is defined by section 2380, Rev. St.

3. Where it is sought to review the action of a trial court on the ground that the verdict is contrary to the evidence, all the evidence that was before that court must be presented to the appellate court, or it will refuse to enter upon a consideration of the question.

4. Where a correct instruction is requested by the accused, it is error to refuse it as having been already more correctly given in accordance with the evidence, where the charge referred to as having given it more correctly makes essential to an acquittal conditions or propositions that are not contained in the rejected instruction.

5. Where a charge, if erroneous at all, is clearly favorable to the accused, he cannot claim further consideration of it as a ground for reversal.

6. Where the state, in making proof of its case, puts in evidence the statements made to other persons by the accused of the circumstances of the killing, it is error for the judge to instruct the jury that "for obvious reasons said statements and admissions should be received with caution," where it cannot be said that the jury's understanding of the instruction was that caution should be exercised in his favor in weighing the statement.

7. The rules as to the admission in evidence of the accused's declarations of the circumstances of the homicide when they are offered by the state in proof of its case, and as to the credibility to be attached to the same by the jury, discussed.

(Syllabus by the Court.)

Error to circuit court, Columbia county; John F. White, Judge.

Dallas Marshall was convicted of murder in the second degree, and brings error. Reversed.

B. H. Palmer, for plaintiff in error. William B. Lamar, Atty. Gen., for the State.

RANEY, C. J. The jury found the plaintiff in error guilty of murder in the second degree, and the sentence prescribed by the law (section 2380, Rev. St.)-imprisonment in

the state prison for life-was pronounced by the court, and it is contended here that the testimony does not sustain the verdict. The stated section of the Revised Statutes has, as will appear by comparing it with section 2, p. 350, McClel. Dig., made a change in the law of murder as it stood at the time the revision became operative, (June 13, 1892.) There are still three degrees of murder, but they are defined as follows: The unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed, or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, or burglary, is murder in the first degree. Murder in the second degree is when the unlawful killing is perpetrated by any act imminently dangerous to another, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. Murder in the third degree is when the unlawful killing is perpetrated without any design to effect death, by a person engaged in the commission of any felony other than those specified above.

The change made in defining murder in the first degree consists in the addition of the words following the word "being" down to and inclusive of the word "burglary," but the only change in the old definition of murder in the second degree is the substitution of the word "another" for the word "others." Murder in the third degree, under the old law, was where the unlawful killing "was perpetrated without any design to effect death, by a person engaged in the commission of any felony."

Counsel for the prisoner invokes the decision of this court made at the January term, 1888, in Johnson v. State, 24 Fla. 162, 4 South. 535, in support of the contention referred to above. It is to be observed of that decision that its purport, as to the point relied on, is that, if the effect of the testimony was to show in the accused an intent to kill any particular person, such proof, as the statute then was, excluded the case from murder in the second degree. Putting the lives of many in jeopardy, or imminent danger to many, was an essential to the offense under the old statute; and, though no deadly intent was necessary to the offense, and a general deadly intent, an intent to hurt many, did not exclude a case from it, yet a particular deadly intent, or intent to kill a particular individual, did work an exclusion This is clearly shown by the case of Darry v. People, 10 N. Y. 120, decided in the year 1854,-14 years before we adopted the same statute there construed. Of the correctness of the decision in Johnson's Case none of us feel any doubt. The change of language indicated above to have been made by the revision in substituting "another" for "others" is, however, material, and its effect is to re

move the former exclusion of cases where danger to only one person is shown; and consequently, if the testimony before us shows a premeditated design on the part of the accused to effect the death of the deceased, or is sufficient to sustain a conviction of murder in the first degree, such particular deadly intent will not prevent an affirmance of the judgment. The fact that the evidence may be more than sufficient to sustain the verdict, or would support a conviction of a higher degree of murder, will not render it insufficient to do so, nor can the prisoner complain of the error of the jury in finding a verdict for the lesser offense. Brown v. State, 31 Fla. 207, 12 South. 640. Murder in the second degree is no longer an offense in which there must be danger to many.

II. Before proceeding to the consideration of any other question, there is a preliminary point to be considered, it being whether or not the bill of exceptions does not show upon its face that the entire material case presented to the jury is not before us. In the first place, it states that one of the witnesses-William McNish-gave the dimensions of the wounds. These dimensions are not stated. Again it says that Marshall's gun was exhibited to the jury, but it has not been brought here. And then it says that Henry See explained to the jury the diagram made by him; still the explanation is not set forth. Assuming, but not deciding, that the absence of the gun which was put before the jury by the defendant may be immaterial in view of the fact that there is no conflict in the evidence as to the marks on it, and even making the same assumption as to the explanations of the diagram by See on the theory that his explanation was nothing more than the usual tracing of lines and pointing out the objects designated on the diagram,—an assumption of a most questionable character, in view of the imperfectness of the diagram in the record,— we must still say, in view of the absence of the dimensions of the wounds, that it is very doubtful that this case could be considered by us on the ground that the verdict is contrary to the evidence. Where it is sought to review the action of the trial court on the ground just stated, all the evidence which was before that court must be presented to the appellate court, or it will refuse to enter upon a consideration of the question. Lurton v. Carson, 2 Blackf. 464; Hammon v. Sexton, 69 Ind. 37; Morris v. Stern, 80 Ind. 227; French v. State, 81 Ind. 151; Shimer v. Butler University, 87 Ind. 218; Keep v. Kelly, 29 Ala. 322; Pullen v. Lane, 4 Cold. 249; 2 Amer. & Eng. Enc. Law, 220. Counsel who bring cases here must not be surprised at our refusal to sit in review of any judicial action where it does not appear that all of that upon which the lower court acted is before us. In view of the fact that the case has to be reversed

on the ground considered in the next subdivision of the opinion, the bill of exceptions showing enough for action on the points there discussed, (Seymour v. Creswell, 18 Fla. 30,) we do not now say any more on this subject than to observe that the greatest care should be taken by all concerned to see that bills of exception do contain all the evidence necessary to show the exact condition of the trial court as to any point upon which it has ruled.

III. On the trial the prisoner's counsel requested the judge to give the following instruction to the jury: "If you find from the evidence that the deceased, in going by the prisoner's house, left the most direct road to go by the prisoner's house, and called the prisoner, telling him he had come to kill him or be killed, and that the prisoner honestly intended to escape from the house to avoid danger, and that the prisoner saw the deceased present his gun at him, or that he had reasonable ground to apprehend great bodily harm, then the defendant had a right to protect himself." The judge refused the charge, because, as stated by the bill of exceptions, it had been already given more correctly from the evidence. We find the only instruction to which the judge could have referred to be as follows: "If you believe from the evidence that the defendant, without being in fault himself, with the knowledge that the deceased had made threats against his life, or had made threats of personal violence against him, was in his own house, and that the deceased, armed with a deadly weapon, a little after dark on the night of the homicide rode up to or near defendant's house, and cursed him for a G d S of a b―, or a cowardly of a b, and that defendant told him to go away, that he did not want to have a difficulty with him; and should find further that deceased refused to do so, and continued to curse defendant, and that he had then and there told him he had come to kill him, or that he would then and there kill the defendant, or that defendant should kill him; and should further find from the evidence that defendant had reasonable ground to apprehend a design on the part of the deceased to murder him, or to commit a felony, or then and there to do the defendant some great personal injury, and there was reasonable ground to believe that there was imminent danger of such design being then and there accomplished, and that the defendant, to protect himself from death or some great personal injury, immediately shot and killed the deceased in self-defense, -then you should find the defendant not guilty on the ground of justifiable homicide."

S

Our judgment is that it was error to refuse the charge. Previous threats by the deceased, and knowledge of the same by the prisoner, were not essential to the prisoner's right to protect himself by taking the life

of the deceased. They are not made so by the instruction asked, but are by that given; and for this reason, if for no other, the former should have been given.

There are also exceptions to two instructions given in the general charge. One is on the theory that heat of passion is not justified in the eyes of the law by mere words, and that the instruction to the effect that heat of passion thus generated may make a killing manslaughter was erroneous. Certainly no injury could have resulted to the accused from the charge, and we will not consider it further. Sullivan v. McMillan, 26 Fla. 543, 589, S South. 450, 460. The other instruction is that the prisoner shot "from the inside of the house." As the case has to go back, it may be sufficient to say that if on a new trial the testimony on this point should be the same as it is in the record before us, it will be safer to omit the expression, as has been done in some of the instructions.

IV. The instructions given to the jury as to the statements of the accused which the state put in evidence require, in view of a new trial, some notice, though they were not excepted to.

In Rex v. Jones, 2 Car. & P. 629, it was held by Bosanquet, sitting at the assizes in the year 1827, that "if a prosecutor uses the declaration of a prisoner, he must take the whole of it together, and cannot select one part and leave another; and if there be either no evidence in the case, or no other evidence incompatible with it, the declaration so adduced in evidence must be taken as true. But if, after the whole of the statement of the prisoner is given in evidence, the prosecutor is in a situation to contradict any part of it, he is at liberty to do so; and then the statement of the prisoner, and the whole of the evidence, must be left to the jury for their consideration, precisely as in any other case, where one part of the evidence is contradictory to another." This doctrine has not received the sanction of the courts, and is not sound. In Corbett v. State, 31 Ala. 329, the court admits, as is well settled, that when a confession is given in evidence against a defendant it is his right to have the whole of it laid before the jury, and considered by them. Yet it denies that it follows that, if there be either no other evidence in the case, or no other evidence incompatible with it, the declaration so adduced in evidence must be taken as true, and aptly says: "The declaration or confession may be incompatible with itself, or may be so unreasonable as to tax credulity too far. We hold that the defendant has all his rights, in this connection, when the entire conversation is laid before the jury, and they are instructed to give it a fair and unprejudiced consideration. Of course that body will not, and should not without reason, believe that portion which makes against the prisoner, and reject all that favors his inno

cence." Again, in Eiland v. State, 52 Ala. 322, where the above is approvingly quoted, the same court observes: "The law does not ascertain the credence which shall be attached to either part, or to the confession or declaration in its entirety. The jury are not bound to attach equal credence to every part. They may, for sufficient reasons, reject a part and give effect to a part. Such rejection cannot be capriciously made, nor can credence be capriciously given to a part. That which is favorable to a party should not be rejected merely because it is favorable to him, and because of the motives which may have induced him to make it. The confession should be taken as a whole. The time and circumstances of its making, its harmony or inconsistency with other evidence, and the motives which may have operated on the party in making it, should all be fairly considered by the jury. Then, without regard to whether they are clearly disapproved or not, the jury should credit all that they find sufficient reason for crediting. and reject all they find sufficient reason for rejecting."

Statements, confessions, and admissions, when given in evidence, says the supreme court of Missouri, must all be taken together, and the jury will attach such credit to them as they deem them worthy of. They may believe everything the party says in his favor, or they may reject the same. It all depends upon the circumstances surrounding the case, and the degree of probability there is in the truth of the statements when viewed in the light of the whole transaction which they purport to narrate. Mr. Greenleaf, in his work on Evidence, (section 218,) observes that if what the prisoner has said in his own favor is not contradicted by evidence offered by the prosecutor, nor improbable in itself. it will naturally be believed by the jury; but they are not bound to give weight to it on that account, but are at liberty to judge of it. like other evidence, by all the circumstances of the case. State v. Hollenscheit, 61 Mo. 302. See, also, Blackburn v. State, 23 Ohio St. 146; 1 Greenl. Ev. (15th Ed.) § 201.

We think the rule to be well stated by the Alabama court, and do not understand the other authorities cited to convey a different meaning.

The instructions alluded to as having been given by the trial judge are as follows: "If you believe from the evidence that the accused made voluntary admissions, or that he made a statement or statements to persons in regard to the homicide before arrest, then such admissions and statements may be considered by you in making up your verdict. For obvious reasons, said statements and admissions should be received with caution. It is your duty to consider all that it is proven he said before and immediately after the homicide, and thereafter until arrested; and you may believe the whole of his admissions or statements, or none, or no part of the