
    Robert Burroughs, Plaintiff in Error, vs. The State of Florida, Defendant in Error.
    1. An initial letter, interposed between the Christian and surname, is no part of the name. The law knows only of one Christian name.
    2. An indictment was presented by a grand jury against Robert II. Burroughs. The defendant plead in abatement that his name was Robert Burroughs The court permitted the State’s attorney to specify in writing the fact that the indictment was found against ’ Robert Burroughs, under the name of Robert II. Burroughs, such specification in writing being under chapter 1107 of the laws oí 1801; Held, That the court had authority so to order, under and by virtue of that act.
    3. Courts are entrusted with a discretion in regard to the order of the introduction of evidence and the examination of witnesses, and this discretion should be exercised in furtherance of justice.
    4. It is not error when, in the exercise of a souqd* discretion, the court permits the party to introduce a new-witness after the evidence is closed on both sides, unless such witness has been kept back by trick, or the opposite party had been deeclvcd or injuriously affected by it.
    0. A general exception to the charge of the judge to the Jury is not available on error, if any one of the propositions contained in such charge is correct.
    6. During the trial, the counsel for the defendant reduced to writing, and gave to the judge a proposition he desired him to embody in his charge to the jury. Subsequently In charging the jury, the judge neglected to give such proposition, or the substance thereof, to the jury. Defendant’s counsel did not call the attention of the judge to such request, and failed to note an exception; Held, That defendant’s counsel abandoned his request, and that there was no
    7. An objection to the manner of drawing, summoning, or empanelling a grand jury, must be taken advantage of by plea in abatement to the indictment, and cannot be made the ground of a motion in arrest of judgment.
    8. Judges of the Circuit Courts of this State may charge juries trying 1 felonies not punishable capitally, and misdemeanors, orally ¡ unless before the evidence in the case is closed, the State’s attorney, or the attorney or attorneys, for the defendant or plaintiff, or the parties themselves, shall, in writing, request such Judge to charge the jury in writing. (Chapter 2096, Laws 1877.)
    writ of Error to the Circuit Court for Madison county.
    On the 21st day of April, 1879, the grand jury of Madison county presented an indictment against Robert H. Burroughs, for an “assault with intent to murder.” The material part of said indictment charges “that Robert H. Burroughs, late of said county of Madison, on the 20th day of March, in the year of our Lord one thousand eight hundred and seventy-nine, and on divers other days and times, between that day and the day of the finding of this inquisition, with force and arms within the county and State aforesaid, unlawfully, with a gun known as a musket gun, which he the said Robert H. Burroughs in his hand then and there held, loaded with gun-powder and leaden bullets, in and upon one M. H. Wearing, did make an assault, by placing said musket gun to his shoulder, the muzzle of said musket gun, loaded as aforesaid, pointing toward the said M. H. Wearing, with an intent him, the said M. H. Wearing, then and there feloniously, willfully, and of his malice aforethought to murder and other wrongs to the said M. H. Wearing, then and there did, contrary to the form of the statute,” &c.
    To this indictment the defendant filed a plea in abatement, alleging that he had never been known or called by the name of Robert H. Burroughs, but that his name was Robert Burroughs, and prayed the court to quash the, indictment.
    
      The court overruled the plea, and permitted the State’s attorney to file his specification amending the indictment, to which decision the defendant’s counsel duly excepted. The specification so filed is as follows:
    State Circuit Court of Madison county— vs. ( Indictment for Assault with in-Robert Burroughs, j tent to Murder.
    The defendant having filed a plea in abatement in the above cause, setting forth that his true name is Robert Burroughs, and not Robert H. Burroughs, as set forth in the indictment, and it appearing that the indictment is vague and indefinite in .said particular, and may expose the accused to substantial danger of a new indictment for the same offence, and the court so ordering, now comes the State of Florida, by William B. Taylor, State’s attorney, and avoids the objection set forth by the said plea in abatement, and specifies th‘at he is prosecuting the said Robert Burroughs, the person who makes the said plea, and not Robert H. Burroughs, and he specifies that the said indictment is intended to be against the said Robert Burroughs, and files this specification to be deemed and taken to be a part of said indictment.
    Wm. B. Taylor, State's Attorney.
    
    On the filing of this specification, on motion of -the defendant, the cause was continued until the next term of the
    On the 22nd day of October, 1879, the counsel for the defendant moved to quash the indictment for the reason that it “was vague and indefinite” and did not “sufficiently describe the manner in which the alleged assault was made.”
    The court .overruled the motion and the defendant’s counsel excepted. The defendant then plead not guilty, the cause was tried, the court charged the jury, and the “defendant, by his attorney, did then and there except to the whole of said charge.” The bill of exceptions recites that the “defendant, by his attorney, during the progress of said trial, and while said judge was preparing his charge to the jury, reduced the following to writing, and requested the judge ¡ to give the same specially in charge to the jury, to-wit: ‘If you believe from the evidence that at 'the time of the alleged assault the defendant was walking along the streets of Madison, and was suddenly warned or informed by any one thht Wearing, or any one else, was in the act of shooting him, he was justified in putting himself in an attitude of defense.’ After the judge had concluded his charge to the jury, and not hearing any further request from counsel to give anything specially in charge, he, the said judge, neglected to give the above, or the substance thereof, .in charge to the jury as requested.”
    The jury found the defendant guilty and recommended him to the mercy of the court.
    The counsel then moved for new trial and also in arrest of judgment.
    The court overruled both motions, and the defendant’s counsel duly excepted.
    The court then sentenced the defendant to the penitentiary for the term of five years.
    From this judgment the defendant brings his writ of error, and assigns the following errors:
    I. The court erred in overruling the defendant’s plea in abatement, and in permitting the State’s 'attorney to file specification amending said indictment.
    II. The court erred in overruling defendant’s motion to quash the indictment.
    III. The court erred in permitting the State’s attorney to peremptorily challenge the juror, W. R. Gone, who had been accepted by the State and tendered to the defendant and virtually accepted by him.
    IV. The court erred in permitting the witness, Z. I. Cobb, to testify as to the declarations of the defendant prior to the alleged assault after the defense had rested, such testimony not being in rebuttal of any matter introduced by the defendant.
    V. The court erred in charging the jury; the punishment for assault with intent to murder was imprisonment in the State penitentiary “not exceeding two years or by fine not exceeding $500.”
    VI. The court charged the jury as follows: “If you believe from the evidence that the accused, at the time he is alleged to have made the assault, said to Wearing, ‘if you present that pistol,’ or ‘if you do not let me alone,’ or with any such condition or qualification made at the time, and Wearing thereupon desisted, and nothing more was done by the accused, there was no legal assault;” such charge was error, in that it was a mere abstract principle of law, not applicable to the case.
    VII. The court erred in refusing or neglecting to give to the jury the charge requested by defendant’s counsel.
    VIII. The court erred in overruling defendant’s motion for new trial upon the grounds therein alleged.
    IX. The court erred in overruling defendant’s motion in arrest of judgment upon the grounds therein alleged.
    X. The court erred in not signing and sealing his instructions to the jury.
    
      J. N. Stripling and TI. Bisbee, Jr., for Plaintiff in Error.
    1. Plaintiff in error pleaded misnomer in abatement. Misnomer is ground for abatement. 1 Arch. Criminal Pleading and Practice, 6 ed., Ill, note 1.
    The court permitted the State Attorney to file specification amending the indictment. This was error; such specification formed no part of said indictment, and no person can be tried, except upon indietmnet. Bill of Rights, sec. 8 Amendments not permissible. 1 Bish. Crim. Pro., §88, 96, 97, 70, 7, 8, 9, 10; 1'Arch. Crim.-Plead, and Prac., 6 Ed., 100; McKünly vs. State, 8 Hump., 22; 35 Miss., 366; 3 Cush., 282; 10 Mass., 28; 16 Pick., 120.
    3. The indictment should have been quashed. An assault must consist of certain acts, and the acts constituting it must be specially and definitely alleged. Beasley vs. State, 18 Ala., '535; Trexler vs. State, 19 Ala., 21; State vs. Johnson, 11 Texas, 22.
    4. The court erred in permitting the witness Cobb to testify as to the declarations of the defendant before the alleged assault, after the testimony had closed for State and prisoner, such testimony not being in rebuttal of anything offered by defense. It is true that the court has large discretion in the admission of testimony, and upon good reason shown, may depart from the rule, but such departure should only be made where the State attorney closes his case inadvertently. (Haskins vs. State, 11 Ga., 92.) In this case the State attorney closed after due deliberation, without Cobb’s evidence. The emergency, therefore, did not arise which called upon the court to exercise its discretion in departing from an established rule.
    5. The court erred in charging the jury, that the punishment for assault with intent to murder was imprisonment, &c., or fine of, $500. Ho exception was taken at the time to this charge of the court; but if the law is incorrectly stated, the opinion of the judge ought to be revised. Hamilton vs. Russell, 1 Cranch, 309, 318.
    6. It was error in the court to charge the jury, the abstract principle of law, that if they believed from the evidence the prisoner made use of any qualifying remarks, such as “if you doji’t let me alone, I’ll shoot you,” no legal assault was made. Neither side attempted to show any such state of facts, and the charge was calculated to mislead the jury. If such charge could have misled the jury, verdict ought to be set aside. Hamilton vs. Russell, 1 Crunch, 307, 318. It is no part of the law of the case. Chapter 3096, laws 77.
    7. It was error in the court to refuse or neglect to give the charge requested by defendant's counsel. It was an omission to charge an important and material question of law, applicable to the .case, and this verdict ought to be set aside. Galbrith vs. Gracy, 1 'Wash., e. c. 198.
    8. The court should have granted a new trial because the verdict was not warranted by the evidence.
    9. The judgment should have been arrested. The grand jury which presented the indictment was illegal in that it was drawn from a list which contained more than 300 names. Gladden vs. State, 13 Fla., 633; State vs. Harden, 3 Rich., 533; Miller vs. State, 33 Miss., 356; Bishop Grim! Pro., §88, 89, page 540.
    10. Lastly, judge did not sign and seal instructions to jury. Chapter 2096, act 77.
    
      The Attorney-General for the Defendant in Error.
    1. The first assignment of error is that the court erred in overruling defendant’s plea in abatement, and permitting the State Attorney to file specifications amending the indictment.
    This assignment should be discussed first with reference to overruling the plea, and then as to permitting the filing of the specifications.
    The- plea is one of misnomer, to-wit: that his name is Robert Burroughs, and not “Robert H. Burroughs,” as alleged in the indictment.
    The law knows only of one Christian name, and the middle name forms no part of it, so that its insertion or omission makes no difference, and may be disregarded. Ed-mondson vs. State, 17 Ala., 179; State vs. Manning, 14 Texas, 402; State vs. Smith, 7 English, 622; Kean vs. Meade, 3 Peters, 9; Eranklin et al vs. Talmage, 5 Johns;, 84; Erskine vs. Davis, 25 Ill., 251; State vs. Martin, 10 Mo., 391; State vs. Williams, 20 Iowa, 98; State vs. Thompson, 19 Iowa, 298.
    Mr. Bishop, in his “Criminal Procedure,” Yol. 1, §683, intimates the opinion that at the present time in this country the above is not sound doctrine. We respectfully submit, however, that such is the current of modem authority and the old law.
    The specification filed by the State attorney does not impair the indictment. The middle name or initial being no name, and the court having in effect so decided, there was no necessity for such a paper being filed, and, relating as it does, to an immaterial defect, it has no effect in law one way or the other. If of any effect, it is beneficial to the prisoner in identifying him and saving him against a second jeopardy.
    It is to be presumed, I suppose, that this proceeding was taken under Chapter 1107, of the Laws of Florida. The following authorities affirm the constitutionality of the amendment and of such statute: 1 Bishop on Grim. Pro., §97, 98, 711; State vs. Schrueker, 29 Mo., 268; State vs. Manning, 14 Texas, 402; Commonwealth vs. Holly, 3 Gray, 458; Rocco vs. State, 37 Miss., 357.
    2. The second assignment of error is that the court erred in overruling the motion to quash the indictment. The ground of this motion is that the indictment is vague and indefinite, and does not sufficiently describe the manner in which the assault was made. It is respectfully submitted* that an inspection of the paper will disclose the contrary.
    3. The third assignment of error is that the court erred in permitting the State Attorney to challenge peremptorily the juror, W. R. Cone. The circumstances were as follows: The regular venire having been exhausted, the court instructed the sheriff to summon by-standers, and of the bystanders so summoned, Cone and two others were tendered by the State to the defendant, all of whom, except Cone, were peremptorily challenged by the defendant. Two othr by-standers were then summoned, and the State Attorney then moved the court for leave to withdraw the tender of Cone, and to peremptorily challenge him, and the motion was allowed.
    There was no error in this. This right exists up to the swearing of the puror. Such matters rest in the sound discretion of the court, and will not be controlled by the appellate court, unless it is shown that injury has been done the prisoner. It is not so shown in this case. O’Conner vs. State, 9 Fla., 216, .226, 230; Beauchamp vs. State, 6 Black-ford, 307; Munly vs. State, 7 Blackford, 593; Morris vs. State, 7 Blackford, 607; State vs. Hays, 23 Mo., 287; People vs. ICohle, 4 Cal., 198; People vs. Rodiguez, 10 Cal., 50; Henrick vs. Commonwealth, 5 Leigh, 708; People vs. Bodine, 1 Denio, 281; 1 Bp. Cr. Pro., §945, 933; 1 Chitty’s C. Law, 545; 12 Wheaton, 480.
    4.The fourth assignment is upon the court’s permitting a witness to testify as to the declarations of the defendant prior to the alleged assault after the defense had rested, such testimony not being in rebuttal of any evidence introduced by the defendant.
    Assuming even that the testimony is not in rebuttal of any evidence introduced by the defendant, the matter was still one within the sound discretion of the court below, and an appellate court will not control such discretion, unless it is apparent that injustice has been done. This is not shown. Coker and Scheiffer vs. Hays, 16 Fla., 377; Bray-don vs. Gonlman, 1 Monroe, 115-17-18; 2 Philips on Ev., Mather, 4 Wend., 249; Law vs. Merrills, 5 "Wend., 268.
    5 and 6. The fifth and sixth assignments of error are to the charge of the court to the jury. It is sufficient to say no proper exceptions have been made to the charge. The charge embraces distinct propositions, and if any of these axe erroneous they are not all so, and the exception is general. Dupuis vs. Thompson, 16 Fla., 69; May and Sloan vs. Gamble, 14 Fla., 467.
    7. The seventh assignment of error is as to the court’s refusal to give a charge requested. It is sufficient to say that there is no exception to the refusal of the court, if there was such refusal. (Story and Sullivan vs. State, 16 Fla.) There was no such refusal; the defendant virtually abandoned his application.
    8. The eighth assignment of error is that the court erred in refusing defendant a new trial, upon the grounds alleged in his motion. The third, fourth and fifth grounds of the motion for a new trial are those assigned for error in the third, fourth and seventh assignments of error. The first ground of the motion is, that the verdict was contrary to law; and the second, that it is contrary to evidence. We respectfully contend that there is nothing to sustain these grounds. The verdict was legal and in accordance with the testimony, assuming always that the jury are the judges of the credibility of the witnesses. There is, it is true,, conflicting testimony, but it was for the jury to say whom they would believe. It is unnecessary to cite authority as to this being a jury’s province. The testimony not being voluminous, it is not necessary to insert it here, or discuss it other than orally.
    9. The ninth assignment of error is that the court erred in overruling the defendant’s motion in arrest of judgment.
    There are five grounds for arresting the judgment stated.
    The first is that the list of names was not properly certified and signed by the Chairman of the Board of County Commissioners, and the second is that this list contained more than three hundred names.
    
      There is nothing in the bill of exceptions to show these allegations to be tine. The papers following the bill of exceptions cannot be considered as part of the testimony in this case, or as having been introduced in evidence in the court below to sustain these allegations, as they are not incorporated in the bill of exceptions. Eobinson vs. I/En-gle, 13 Fla., 482; Proctor vs. Hart, 5 Fla., 469," Tompkins vs. Bason, 8 Fla., 14; Eobinson vs. Mathews, 16 Fla., 319.
    Exceptions of this character to the grand jury should be taken by plea in abatement or challenge, and cannot, after a plea of not guilty and trial, be availed of by a motion in arrest of judgment. ICitrol vs. State, 9 Fla., 9; Gladdch vs. State, 13 Fla., 630; McQuillen vs. State, 8 S. & M., 587; People vs. Griffin, 2 Barb., 427.
    The third ground of the motion is that it does not appear by the record that there was any notice given of the time and place when the jurors were to be drawn who were to serve at the term of the court at which the indictment wsa found and presented.
    I do not feel that it is necessary to produce authority to the effect that the presumption is that these notices, were given. To overcome this presumption the defendant should have made it appear affirmatively upon the record that such notices were not given, if by so doing he could on a motion in arrest of judgment have derived any benefit therefrom. The statute requiring-these notices to be given is directory, and if it was shown by the record that the}' had not been given, we would still question the defendant's power to derive benefit therefrom.
    The fourth ground of this motion in arrest of judgment is that it appears by the record that the jurors who served at the term of the court were drawn by “E. M. Wither-spoon, C. J. Thomas, T. Ellison, deputy sheriff, and John M. Beggs, Clerk of the Circuit Court,” and the drawing was illegal in that they should have been drawn by the clerk in the presence of the sheriff, (or in his absence the deputy sheriff,) and county judge. As a matter of fact; it does not so appear. If the papers following the bill of exceptions were introduced in evidence to prove the allegation, they should have been incorporated in the bill of exceptions; this has not been done and they cannot be treated as evidence by this oourt.
    The fifth ground of the motion for arrest is, that it does not appear by the record that at the meeting of the county judge, deputy sheriff and clerk, for the purpose of drawing the jurors to serve at the term, the sheriff made proclamation of such meeting and its purpose at the door of the court house.
    The remarks made as to the third ground of the motion are applicable to this.
    10. Absence of signature and seal from charge.
    There was no request in writing before the evidence closed that the judge should charge in writing, and consequently the judge had the legal right to charge orally, and not being placed under a legal duty to charge in' writing, the plaintiff in error cannot require the formalities requisite to a charge in writing, when it is made a legal duty.
    As stated above, the instructions presented by plaintiff in error were in effect abandoned by him, by his not urging them until the judge ruled upon them. There was no ruling upon them to except to.
   Mr. Justice VanValkenburgii

delivered the opinion of the court.

As to the first assigned error, that the court overruled the plea in abatement and permitted the State Attorney to amend the indictment by filing a specification, we think the views held by the counsel for the defendant are not tenable. It was long ago held in England, under their laws, that a person could have but one Christian name, or that if he had, but one would be regarded by the law. This rule has been very generally adopted in this country, and seems to be well established in several of the States. In the case of the people vs. Cook, 14 Barbour, 259, 307, the court say: “It has been repeatedly held in this court, that the middle letter between the Christian and surname does not prejudice, even in judicial proceedings and in conveyance of estates. It is no part of the name, for the law knows only of one Christian name.”

In the case of the State vs. Manning, 14 Texas, 402, the court say: “It seems well settled that an initial letter, interposed between the Christian and surname, is no part of either. (Bratton vs. Seymour, 4 Watts, 329.) And it would seem to follow that it is immaterial whether one be introduced, which the party is not accustomed to use, or one be omitted which he is accustomed to use, or whether those used by him in writing his name be transposed. In neither case would it amount to a misnomer.”

In the case of Edmundson vs. The State, 17 Alabama, 179, the court say: “But it is contended that the improper insertion of the middle letter ‘L.' in the name constitutes a misnomer. We do not think so. There are, it is true, authorities which go to that extent, but we think the better opinion is, That the law knows only of one Christian name/ and that the middle letter forms no part of it, so that its insertion or omission makes no difference and may be disregarded.” See also Keene vs. Meade, 3 Peters, 1; Rex vs. Newman, 1 Ld. Ray, 562; Roosevelt vs. Gardiner, 2 Cowen, 463; Franklin vs. Talmadge, 5 Johnson, 84; Milk vs. Christie, et al., 1 Hill,. 102; Erskine vs. Davis, 25 Ill., 251; State vs. Martin, 10 Mo., 391.

But, had the insertion of the middle letter in the name of the defendant, as used in the indictment, been held bad, the defect was amply cured by filing, under the order of the judge, the specification making such indictment more definite, by striking out such initial letter. Such amendments are permitted in the English courts. By statute 7, Geo. 4, chap. 64, it is provided, “that no indictment or information shall be abated by reason of any dilatory plea of misnomer, or want of addition, or- of wrong addition, of the party offering such plea, if the court shall *be satisfied by the affidavit or otherwise of the truth of such plea; but in such case the court shall forthwith cause the indictment or information to be amended according to the truth, and shall call upon the party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded.”

In our own State, we have a statute under which the specification in this case was filed, and the amendment made, chapter 1107, laws of 1861, approved February 2, 1861, §3 provides: “That at any time,-either before or after trial, when it shall appear to the court, on the application of the accused, that the vagueness of the indictment would expose the accused to substantial danger of a new indictment for the same offence, it shall be the duty of the said court to require the solicitor to specify in writing the details of the offence charged against the said accused with sufficient distinctness as to obviate the said objection, which specification shall constitute a part of the record in said case.” While this statute does not in express terms warrant an amendment so as to cure a misnomer, still in the language of the first section, it embraces “any defect in the form of the indictment” which, in the opinion of the court, makes it “so vague, indistinct and indefinite, as to mislead the accused and embarrass him * * * in the preparation of his * ■ * * defence, or expose him, * * * after conviction or acquittal, to substantial danger of. a new prosecution for the same offence.” The court very properly permitted the filing of the specification in abundance of caution to protect the defendant in case of Ins acquittal or conviction from tlie clanger of a new prosecution for the same offence.

The indictment charges that the defendant “did make an,assault by placing said musket gun to his shoulder, the muzzle of said musket gun, loaded as aforesaid, pointing toward the said M. H. Wearing with intent/5 &c. We think the acts constituting the assault are sufficiently set out, and that the indictment is not in this respect “vague, indistinct or indefinite/5 and therefore that the second ground of error is not well taken.

The third assignment of error was abandoned by the counsel for the plaintiff in error on the argument.

The fourth error alleged is that the court erred in permitting the witness Cobb to testify after the defence had rested, his evidence not being in rebuttal of any matter introduced on the part of the defendant, but cumulativé on the part of the State. Courts are intrusted with a discretion in regard to the introduction of evidence and the examination of witness; this discretion should be exercised in furtherance of justice; when formal proof has been omitted they have allowed witnesses to be called, and other proof given at any time before the jury retire. When the plaintiff’s attorney by an accidental omission does not examine a witness who was present in court, and a non-suit is moved for after resting his case, the court has permitted the witness to be examined in furtherance of justice. It must be a strong case, showing that injustice has been done the party, and that a sound discretion has not been exercised, which would induce this court to interfere to disturb the judgment of the Circuit Court, by revising the exercise of that discretion with which they are entrusted in regard to the relaxation of the rules of evidence. In the case of Coker and Schiffer vs. Hayes, 16 Fla., 368, tins court said: “A party, after closing the examination of a witness, and after closing his testimony, has no absolute right to recall a witness before examined by him to establish matters not in rebuttal, or to simply repeat his testimony. * * * Whether this rule ought, or ought not to be varied, is a question for the Circuit Court; and a court of error, if it should interpose at all in such matters, should not do so except where it sees that injustice has been done through this action.55

In Brown vs. Burrus, 8 Mo., 26, the court of that State says: “Material testimony ought not to be rejected, because offered after the evidence is closed on both sides, unless it has been kept back by trick, and the opposite party would be deceived or injuriously affected by it. So, after a witness has been examined and cross-examined, the court may, at its discretion, permit either party to examine him again, even as to new matter, at any time during the trial." Freleigh vs. The State, 8 Mo., 606; Law vs. Merrills, 6 Wend., 268; Jackson et al. vs. Talmadge, 4 Cowen, 150; Edwards vs. Sherratt, 1 East, 604; Mercer vs. Sayer, 7 John., 306; Rucker vs. Eddings, 7 Mo., 115; People vs. Mather, 4 Wend., 249.

The fifth and sixth assignments or error relate to the charge of the court to the jury.

It is sufficient to say with regard to these two alleged errors that no exception was taken and noted on the trial. At the conclusion of the charge the record shows only that the defendant by his attorney, did then and there except to the whole of said charge.55 We have frequently held that a general exception to the charge of the court is not available if any one of the propositions contained in such charge is correct. Dupuis vs. Thompson, 16 Fla., 69; John D. C. vs. State ex rel., 16 Fla., 554.

The same difficulty obtains with regard to the seventh error assigned. The record in regard to that reads as follows: “And the said defendant by his attorney, during the progress of said trial and while said judge was preparing his charge to the jury, reduced the following to writing and requested the judge to give the same specially in charge to the jury, to-wit: ‘If you believe from the evidence that at the time of the alleged assault the defendant was walking along the streets of Madison, and was suddenly warned or informed b}r any one that Wearing or any one else was in the act of shooting him, he was justified in putting himself in at attitude of defence.5 After the judge had concluded his charge to the jury, and not hearing any further request from counsel to give anything specially in charge, he the said judge neglected to give the above or the substance thereof in charge to the jury as requested.55 The defendant’s counsel reduced this submitted charge to writing during the trial of the cause, he did not call the attention of the court to it subsequently, and took no exception to the neglect so to charge by the court. We must consider that the request was abandoned, and even if it were not, the failure to note an exception would render it unavailable.

The eighth asignment of error, viz: that the court erred in overruling defendant’s motion for a new trial, cannot be sustained. The only other errors therein named, not herein before examined and disposed of, are that the verdict is contrary to evidence and the law. We cannot see that it is contrary to either. There was sufficient evidence to warrant the conviction by the jury. They are to pass upon the credibility of the witnesses and to determine the facts upon the evidence. This court will not in such a case attempt to disturb the verdict.

The ninth ground of error, to-wit: that there was error in overruling defendant’s motion in arrest of judgment, upon the several grounds mentioned in such motion before the court below, is not before the court. Appended to the record and certified by the clerk are two papers; one purporting to be extracts from the records of the proceedings of the County Commissioners in the following language:

“Madison, Ela., January 2, 1879.
J. M. Beggs, Clerk of Court:
Dear Sir: Attached you will find a list of registered voters, set aside by an order of the Board of County Commissioners of Madison county, at their regular meeting this day, A. D. 1879, from which the jurors for the courts of the present year are to be drawn.
John* L. inglis,
Chairman Board Co. Com

Here follows a list of names.

The second paper reads as follows:

“Madison C. H., Ela., March 13, 1879.
“We file undersigned, R. M. Witherspoon, C. J., Thomas J. Ellison, deputy sheriff, and John M. Beggs,, Clerk of the Circuit < Court, met in the clerk’s office this day and proceeded to draw the grand and petit jurors for the spring term of the Circuit Court for April 21, 1879, whereupon the following persons were drawn, to-wit:
“Grand Jurors, Petit Jurors.”

Here follows list of names.

These papers are not embodied in the bill of exceptions, and the Judge of the Circuit Court has in no manner certified to them, or that they were ever used upon the trial of the cause or on the motion in arrest of judgment. They are, therefore, no part of the record, and can be of no avail in this court. All evidence used in the proceedings and upon motions subsequent to the verdict should be embodied in and made a part of the bill of exceptions in order to enable this court to review them. We have said in Gallaher vs. State, 17 Fla., 370, that “the bill of exceptions is a simple history of the case as tried, and should contain nothing more nor less than the facts as they appeared to the court and jury, from the commencement of the trial until the final judgment by the court. All objections, rulings by the court and exceptions should appear in the body of the bill of exceptions in their proper and appropriate place, and will not be considered if upon separate pieces of paper filed subsequent to the verdict, or in cases of motion for new trial, or in arrest of judgment after final judgment.”

Aside from the fact that there is no such bill of exceptions as is required to present any question of. that character to this court, if it had been properly raised, we are of the opinion, that all objections to the legality of grand jurors must be made by plea in abatement to the indictment before pleading in bar. Such is the rule as announced by this court in Gladden vs. The State, 13 Fla., 623, where the court say: “Such matters are reached by plea in abatement only, (though in some States a challenge to the array is treated, we do not say properly so, as a substitute for a plea in abatement,) and matters in abatement in criminal as well as in civil eases must be pleaded before pleading in bar.”

The tenth and last error assigned is that the court erred in not signing and sealing his instructions to the jury.

Section 1 of Chapter 2096, laws of 1877, approved March 2, 1877, provides that in common law and criminal eases the judge’s charge shall be wholly in writing. Section 2, however, provides: “That the several judges of the Circuit Courts of this State may charge juries trying all appeals from the justices of the peace in civil and criminal cases, and all felonies not punished capitalty, and misdemeanors, orally, unless they are requested by the Slate Attorney, or attorneys for defendants or plaintiffs, or the parties themselves, to charge said juries in writing as declared in the foregoing section, which request shall be in writing, before the evidence in the case is closed.”

There is no evidence in the record that the 'judge of the Circuit Court was requested to charge the jury in writing. Had he been so requested before the evidence in< the case was closed, it would have been error to have neglected or refused so to sign and seal his charge.

The judgment of the court below is affirmed.  