Hysler v. State

• Decision Date: 03 February 1938
• Citation: 132 Fla. 200,181 So. 350
• Court: Florida Supreme Court
• Parties: HYSLER v. STATE (Case No. 1).

181 So. 350

132 Fla. 200

HYSLER v. STATE (Case No. 1).

Florida Supreme Court, Division A.

February 3, 1938

Rehearing Denied June 3, 1938.

Error to Circuit Court, Duval County; Bayard B. Shield, Judge.

Clyde Hysler was convicted of first-degree murder with recommendation to mercy, and he brings error.

Affirmed.

COUNSEL

Sam B. Wilson, of Jacksonville, for plaintiff in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for the State.

OPINION

BUFORD Justice.

Writ of error brings for review judgment of conviction of murder in the first degree with recommendation to mercy rendered in the circuit court of Duval county in February, 1937.

Plaintiff in error has not complied with rule 20 in the preparation of brief, in that questions of law involved are not stated. The brief states five propositions, as follows:

'1. Did the Court err in sustaining the defendant's plea in abatement of the indictment?

'2. Did the Court err in denying the defendant's motion for a change of venue?

'3. Did the Court err in sustaining the State's several demurrers to the defendant's several challenges to the array?

'4. Did the Court err in denying the defendant's motions for a directed verdict?

'5. Did the Court err in denying the defendant's motion for a new trial?'

This amounts to no more than stating assignments of error.

In many instances the plaintiff in error has failed to indicate in the brief the page or pages in the transcripe where are to be found the records of the matters and things to which he refers. Failure to comply with the rule in this regard adds much to the labor of the court. And, at best, we may conclude that the brief maker refers to one thing found in the record when he may have had an entirely different part of the record in mind.

Tyrus A. Norwood, Assistant Attorney General, however, has complied with the rule and stated the questions involved to be as follows:

Question No. I. 'Does the Legislature have no power whatever under the Constitution to adopt a reasonable classification of counties to which shall be applicable an Act providing for jury commissioners and for the selection and listing of persons believed qualified as jurors, universality of present operation throughout all counties of the State being required of such an Act?'

Question No. II. 'Does the fact that the Act applies only to counties having a population exceeding 155,000 inhabitants by the last preceding Federal Census, Duval County being the only County having such population, establish the unreasonableness of the classification based upon population or sustain the assertion that the Act is a special or local law, as distinguished from a general law, in contravention of sections 20, 21, and 24 of article 3 of the Constitution of Florida?'

Question No. III. 'If in fact a general and uniform law adopting a sustainable classification, is the Act any the less a general law by reason of its passage on the local bill calendar?'

Question IV. 'Does the Act violate the constitutional guaranty of trial by jury secured by Section III of the Declaration of Rights of the Florida Constitution or conflict in any way with Sections I and II of the Declaration of Rights or the Fourteenth Amendment to the Federal Constitution?'

Question No. V. 'Should the Act be vitiated by reason of the use therein of the term 'inhabitants' rather than the term 'residents'?'

Question No. VI. 'Is the Act violative of Section 16 of Article III of the Florida Constitution by reason of the fact that its title does not contain a repealing clause as does section 6 of the Act?'

Question No. VII. 'Is this Court bound by the doctrine of Stare Decisis to affirm a judgment of the court below with respect to the question of the validity of the Act and the legality of the venire and jury panel thereunder where such questions are raised by assignments of error?'

Question VIII. 'Did the lower court abuse its discretion in refusing to grant defendant's motion for a change of venue on the ground that the defendant could not secure an impartial trial in the County where the crime was committed, because of his family's odious reputation and the unusual notoriety given to the crime in the newspapers and otherwise, where the record discloses that a jury was selected after an examination of only thirty-seven jurors, and which jury found the defendant guilty of murder in the first degree, with recommendation for mercy?'

Question No. IX. 'Did the lower court err in sustaining demurrer to defendant's challenge to the array of jurors when the only ground of challenge was that the jurors were not summoned by registered mail in accordance with the provisions of Sections 4463 and 4474, Compiled General Laws of Florida, 1927, when it appears that the above mentioned sections have been repealed by Chapter 12068 Laws of Florida, 1927.'

The plaintiff in error in his reply brief has not challenged the correctness of the questions as stated above. Therefore, we will proceed to the disposition of the case by reference to those questions.

It will be observed that the first, second, third, fourth, fifth, sixth, and seventh questions, stated in different form, go to the challenge of the validity of chapter 16058, Acts of 1933.

The statute has been before us in the case of State ex rel. Landis v. Harris, 120 Fla. 555, 163 So. 237, and in Croissant v. Harris et al., 121 Fla. 141, 163 So. 470. When those cases were before us the court was equally divided as to the constitutional validity of the statute.

Every question presented here was presented in the cases above cited, except the two questions numbered 5 and 6 hereinabove quoted. We think that the contentions, (1) that the act, if otherwise valid, would be vitiated by the use of the word 'inhabitants' instead of the word 'residents,' is without merit, as is also (2) the contention that section 16 of article 3 is violated because the title of the act does not refer to repeal of acts in conflict therewith when such repealing clause is contained in section 6 of the act.

It is hard for us to conceive how anything might be stated for or against the validity of the act which was not said in the several opinions which were written in the case of State ex rel. Landis v. Harris, supra. In that case the present writer expressed the opinion and held the view that the act was invalid because the classification was without reasonable basis to constitute the legislation a general act and because section 21, article 3 of the State Constitution was not complied with in connection with the introduction and passage of the act. In view of the majority opinions which have been rendered upholding other legislative acts as general laws, though applying to counties only having more than a certain number in population, and which opinions and judgments have been based upon the reasoning applied by Mr. Justice Whitfield in the case of State ex rel. Landis v. Harris, supra, I am now willing to recede from the views which I expressed in that case and concede that the law appears to have been established by opinions concurred in by a majority of this court contrary to the views which I expressed in that case.

Regardless of what I may think the law should be, I must concede that it is what the majority of the final appellate court holds it to be. It is not necessary to rewrite what was written in State ex rel. Landis v. Harris, ...