Knight v. State

• Decision Date: 11 October 1900
• Parties: KNIGHT v. STATE.
• Court: Florida Supreme Court

28 So. 759

42 Fla. 546

KNIGHT v. STATE.

Florida Supreme Court

October 11, 1900

Error to circuit court, Alachua county; William A. Hocker, Judge.

William J. Knight was convicted of assault with intent to kill, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. A plea in abatement in a criminal case alleging that, at the time the indictment was found and presented, another indictment for the same charge was pending against the defendant, is bad on demurrer.

2. Dilatory pleas in criminal cases are required to be accurate and precise, free from ambiguity, and certain to every intent.

3. The omission of the record in a criminal case to show a joinder in a demurrer is immaterial, and cannot be objected to after the decision of the demurrer.

4. Upon indictments for assault with intent to commit any of the grades or degrees of unlawful homicide, it will not be sufficient to show that the killing, had it occurred, would have been unlawful and a felony, but it must be found that the accused committed the assault with intent to take life in order to sustain a conviction for an assault with intent to commit a felony.

5. Where one assaults another with intent (but not a premeditated design) to kill him, and the assault is accompanied by an act which, if death had resulted therefrom would have constituted murder in the second degree, under the statute defining this degree of homicide, the party committing the assault will be guilty of an assault with intent to commit the felony of murder in the second degree but, if there be no intent to kill, the party committing the assault cannot be convicted for an assault with intent to commit a felony, even though the circumstances are such that had the party assaulted died, the party committing the assault would have been guilty of murder in the second degree.

COUNSEL

B. A. Thrasher, for plaintiff in error.

OPINION

CARTER J.

At the spring term, 1900, of the circuit court of Alachua county, plaintiff in error was tried and convicted upon an indictment found at that term, charging that he (William J. Knight), in Alachua county, on March 13, 1900, 'in and upon one Ben Brown, with a deadly weapon, to wit, a certain pistol, which was then and there loaded with gunpowder and leaden bullets, and by him, the said William J. Knight, then and there had and held in his hand, unlawfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said Ben Brown, did make an assault, and he, the said William J. Knight, did then and there unlawfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said Ben Brown, shoot off and discharge the said pistol, so loaded with gunpowder and leaden bullets aforesaid, at and upon the said Ben Brown, with intent then and there, unlawfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said Ben Brown, to kill and murder the said Ben Brown, contrary to the form of the statute,' etc. From the sentence imposed this writ of error is taken.

The defendant filed pleas in abatement, to which a demurrer interposed by the state was sustained. One of these pleas alleged that at the time the indictment was found and presented another indictment for the same charge was pending against the defendant. This plea was bad, and the demurrer to it properly sustained. Smith v. State, 42 Fla. ---- 27 So. 868. The other pleas alleged that the grand jury which found the indictment was not a legal body. It appears from the allegations of these pleas that there was no criminal court of record in Alachua county; that the persons constituting the grand jury were not summoned by order of the presiding judge from bystanders or the body of the county, or drawn from the jury box prepared by the county commissioners for the year 1900, by the judge or his order, or by the clerk in the presence of the county judge or justice of the peace and sheriff, or his deputy; that the names of said persons were not drawn from the jury box prepared by the county commissioners for the year 1900; and that the names of such persons were not drawn by order of the judge ordering the drawing of the names of 30 persons, from which, when summoned and appearing, a grand jury was to be drawn, to serve at the spring term of the court for the year 1900. The pleas also alleged certain irregularities in the preparation of the jury box for the year 1900, which it is claimed ren dered such box illegal. Section 3, c. 4122, Acts 1893, requires the board of county commissioners of the several counties, at a meeting to be held the first week in January of each year, or as soon thereafter as practicable, to select from the list of male persons qualified to serve as jurors, and make out a list of, a certain number of persons, as therein provided, properly qualified to serve as jurors. Section 4 requires the clerk of the circuit court, under certain specific directions, to write the names of the persons contained in the list so selected on separate pieces of paper, and deposit them in a box, to be closed and kept in accordance with specific directions. Section 5, as amended by chapter 4386, Acts 1895, requires the judge at every regular or special term, in open court, in the presence of the clerk or his deputy and the sheriff or his deputy, to draw from such box the names of 30 persons to serve as jurors at the next succeeding regular or special term of the court. A list of the persons so drawn, in the judge's handwriting, together with the slips containing the names of the persons drawn, is...