Cooper v. State , 134 Fla. 153 ( 1938 )

Chapman, J.

On August 31, 1937, an information was filed in the Criminal Court of Record of Duval County, Florida, charging plaintiff in error with the crime of obtaining money under false pretenses contrary to Section 7258 C. G. L. On arraignment the defendant entered a plea of not guilty. On November 24, 1937, the issues were tried before a jury in the Criminal Court of Record for Duval County, Florida, and on November 26, 1937, a jury rendered its verdict finding the defendant guilty as charged. The lower court sentenced the defendant to serve a period of fifteen months in the State Penitentiary at hard labor, and from said sentence or judgment the suit is here for review on writ of error.

On January 20, 1938, the defendant, through counsel, applied to the Court for leave and authority, to file a motion for a new - trial, in said cause, nunc pro tunc, which was by the trial court denied. The transcript recites that on January 20, 1938, the defendant, through counsel, did enter in writing and submit a motion for a new trial. The grounds of the motion were that the verdict rendered was contrary to the law and evidence, contrary to the charge of the court, and that the trial court erred in receiving into evidence during the progress of the trial of the cause certain described evidence prejudicial to the rights of the plaintiff in error.

It is contended here that this court is powerless to consider the motion for a new trial because the same was not filed in the court where trial was had within four days after the verdict was rendered and during the same term of court in which the verdict complained of was rendered as is prescribed by Section 4495 C. G. L. We have given due consideration to the legal sufficiency of the information filed in the lower court and have read carefully all the evidence offered during the progress of the trial, as well as the objections to the admission of the evidence as made by counsel for plaintiff in error. We have likewise carefully considered the entire charge or instructions to the jury on the law of the case and we hold that there is no error in the record. The judgment appealed from is hereby affirmed.

Whitfield, P. J., and Brown, J., concur. Ellis, C. J., and Terrell and Buford, J. J., concur in the opinion and judgment.