Ballard v. State , 93 Fla. 516 ( 1927 )

The plaintiff in error was indicted for selling intoxicating liquor as a second offense, that for the first offense he had been convicted on a plea of guilty in the County Judge's Court. The verdict was "guilty as charged". In a case of this kind such a verdict has been held to be sufficiently certain to sustain a judgment of the greater offense. See Benson v. State, 88 Fla. 103, 101 So.2d Rep. 231; Adkinson v. State ___ Fla. ___, 103 So.2d Rep. 121.

As evidence of the former conviction the State produced as a witness W. A. McLeod, the County Judge, who produced "Criminal Docket M". The State offered as evidence of the former conviction of the defendant the record of it as "found on page 490 of the Criminal Docket M of the County Judge's Court". The "entire page" was offered in evidence.

To the offer of the introduction in evidence of the County Julge's original record of the defendant's former conviction the defendant objected because it was irrelevant and immaterial, incompetent, and not in accordance with the method provided by statute for proof of such proceedings. The objection was overruled. The bill of exceptions does not show that the County Judge's record, page 490 of the Criminal Docket "M", was either filed in the case or read in evidence to the jury.

When the Court overruled the defendant's objection to the evidence as offered the State Attorney merely asked the witness if any "appeal" had been taken from the judgment; whether it was in full force and if the defendant was the person convicted. To the first question the witness answered in the negative. The State then rested its case. No other showing was attempted to be made of the former conviction.

The trial judge certified that the bill of exceptions contained all the evidence at the trial. There is inserted in the bill of exceptions two pages which purport to contain a transcript of the County Judge's Criminal Docket "M," page 490. These pages, however, are not identified by any mark as indicating that they were used as evidence, nor do they contain any certificate of the County Judge that the contents is a true or correct transcript or copy of the contents of Criminal Docket M page 490.

The Court's ruling refusing to sustain the defendant's objection when the Criminal Docket itself was offered constitutes the only assignment of error.

There was no error in the ruling. While the original was admissible, a certified copy of the entire record of conviction was also admissible. Sec. 2718, Revised General Statutes 1920; Norwaad v. State, 80 Fla. 613, 86 South Rep. 506; 1 Greenleaf on Evidence, Secs. 483-484; Bell v. Kendrick, 25 Fla. 778, 6 So.2d Rep. 868.

There is, however, as pointed out, nothing to show that the record offered in evidence was actually submitted as evidence. Neither is there anything to show that the uncertified copy of the "Criminal Docket M page 490" of the County Judge's Court was a substitute for the original.

The evidence was therefore lacking of a former conviction of the defendant; so the judgment is reversed.

STRUM AND BROWN, J. J., concur.

WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur in the opinion.