Taylor v. State

Citation38 So. 380,49 Fla. 69
PartiesTAYLOR v. STATE.
Decision Date12 April 1905
CourtFlorida Supreme Court

In Banc. Error to Circuit Court, Leon County; John W. Malone Judge.

Walter L. Taylor was convicted of assault with intent to commit manslaughter, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Pleas in abatement must be certain to certain intent in every particular. They must leave nothing to be supplied by intendment, and no supposable special answer unobviated.

2. A plea in abatement to the effect that L., an attorney of the circuit court, without the procurement or consent and over the objection of the state attorney, was permitted by the court to appear before the grand jury during the examination of evidence and witnesses, and to advise the grand jury upon legal points relating to the finding of the indictment--the state attorney being in attendance on the court, and not being from any cause unable to perform the duties of his office, but not being present with the grand jury--without alleging that the state attorney was ready and willing or offered to perform his duties, is bad on demurrer. Taylor and Hocker, JJ., dissent.

3. When a state attorney, though in attendance upon the court refuses to discharge his duties, the court has the implied power to appoint some other member of the bar to appear before the grand jury during the examination of the evidence to advise them on questions of law and to frame indictments. Taylor and Hocker, JJ., dissent.

4. A plea in abatement to the effect that there were two persons qualified to be jurors, the names of whom were in the jury box, named J. P. Billingsley and J. A. Billingsley respectively; that the name of J. A. Billingsley was drawn from the box, while the name of J. P. Billingsley was not; that J. A. was temporarily absent from the county, and J. P. was summoned by the sheriff, and appeared and served as a member of the grand jury which found the indictment--is bad on demurrer, in the absence of allegation that the said J. P. falsely impersonated J. A., or fraudulently procured himself to be placed upon the grand jury, or that he was not known under the name of one of those who served as jurors.

5. There is no reversible error in permitting a special replication in addition to the general replication to a plea in abatement, when the special replication puts in issue the sole material issue raised by the plea.

6. When a plea in abatement and a plea to the merits are tried at the same term of the court, it is proper to present all the exceptions taken on the trial of either plea in a single bill.

7. Offers of testimony having no bearing on issues remaining of record are properly rejected. Taylor and Hocker, JJ., dissent.

8. It is not error to refuse to permit a grand juror to be asked, 'State whether or not the indictment in this case was ignored, and afterwards, without further testimony this indictment was found?' The court will not inquire into the character of the evidence that influenced the grand jury, for the purpose of impeaching an indictment. Taylor and Hocker, JJ., dissent.

9. Questions are properly refused that hypothesize the existence of supposed facts into which the policy of the law will not permit an inquiry. Taylor and Hocker, JJ., dissent.

10. On the trial of one convicted of an assault with intent to murder, there was no reversible error in permitting a witness familiar with sticks to testify that a stick weighing 11 ounces, composed of sole-leather washers built over a steel rod, and varnished so as to resist water, if 'rightly used in the hands of a powerful man, * * * might prove a deadly weapon. It depends on how the man stands, and how hard he strikes.' The stick was exhibited to the jury, and it was shown that the accused used also a loaded pistol.

11. The evidence examined, and deemed sufficient to support the verdict.

COUNSEL

T. L. Clarke, Geo. P. Raney, Fred T. Myers, and Thomas Palmer, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State. of opinion among the members of the division, was referred to the court in bane for decision.

The plaintiff in error was indicted at the spring term, 1903, of the circuit court of Leon county, for the crime of assault with intent to murder. He was tried at the fall term of said court, 1903, and was convicted of assault with intent to commit manslaughter, and, from the sentence imposed, sued out writ of error here.

Before pleading the general issue, the defendant interposed three pleas in abatement, as follows: '(1) That one B. S Liddon, an attorney of this court, without the procurement of George W. Walker, the state attorney for the Second Judicial Circuit of the state of Florida, and without the consent of said state attorney, and against the consent and over the objections of said state attorney, was permitted by the court to appear before the grand jury who found this indictment, and to be present with said grand jury during the examination of evidence and witnesses on whose testimony this indictment was found, and to advise said grand jury upon legal points relating to the finding of this indictment, and to frame this indictment, the said state attorney, George W. Walker, being then in attendance upon said court, and not being from any cause unable to perform the duties of his office, but not being present with said grand jury.

'(2) And for a second plea the defendant says that one B. S. Liddon, an attorney employed to procure this indictment and to prosecute this defendant, not being a duly qualified state attorney, and without the procurement of George W. Walker, the duly qualified state attorney for the Second Judicial Circuit of the state of Florida, who was then in attendance upon the court, and against the consent and over the objections of said state attorney, appearing before and was present with the grand jury which found this indictment, during the examination of evidence, and during their deliberations in this case, for the purpose of securing this indictment against this defendant, to which this plea is pleaded; and being so present with said grand jury, after all the evidence had been submitted, and at and before the finding of said indictment, he, the said B. S. Liddon, did then and there counsel, request, and urge the said grand jury, upon the testimony before them, to find this indictment, and did procure the said grand jury to find and return said indictment; and that, during the times that said B. S. Liddon was present with said grand jury, George W. Walker, the duly appointed state attorney for the Second Judicial Circuit of Florida, was in attendance upon said court, but was not present with said grand jury, but the said B. S. Liddon was in the sole and exclusive charge and management of the said case before the said grand jury.

'(3) And for a third plea the defendant says that the board of county commissioners of Leon county aforesaid, at their adjourned meeting in January, A. D. 1902, held at the circuit court clerk's office in the city of Tallahassee, Tuesday, the 21st day of January, A. D. 1902, in conformity to section 3 of chapter 4122 of the Laws of Florida, selected and made out a list of three hundred persons properly qualified to serve as jurors, and in such list of persons so selected were one J. A. Billingsley and one J. P. Billingsley; that the names of the persons so selected were numbered on the record of said list so made out in consecutive order, and the number appearing opposite the name of the said J. A. Billingsley was 240, and the number appearing opposite the name of the said J. P. Billingsley was 247; that the names of the persons contained in said list, with the corresponding number set opposite such names, respectively, were written on separate pieces of paper by the clerk of the circuit court of said county, and were deposited as required by law in the jury box; that at the fall term of the circuit court of said county, A. D. 1902, the judge of said court, in open court, and in the presence of the clerk and sheriff of said county, drew from said box the names of thirty persons to serve as jurors at the spring term, A. D. 1903, of said court, and that among the thirty names so drawn by said judge was the name of J. A. Billingsley, written on a piece of paper, with the corresponding number, 240, written in front thereof; that among the thirty names so drawn the name of J. P. Billingsley did not appear, and was not drawn; that, when said jury list was so made as aforesaid, J. A. Billingsley was a resident of the state of Florida, and was duly qualified to be placed upon said jury list, but at the time the venire containing the list of thirty names so drawn as aforesaid to serve as jurors at the spring term, A. D. 1903, of this court, came to the hands of the sheriff of said county, the said J. A. Billingsley, so drawn as a juror as aforesaid, was temporarily absent from the county of Leon, and the said J. P. Billingsley was, not in obedience to the said writ of venire, but contrary to the direction thereof, summoned by said sheriff, and appeared and served as a member of the grand jury at the spring term, A. D. 1903, of said court, which found this indictment.'

To the first and third of these pleas, demurrers were interposed by the state and sustained, and to the second plea the state replied as follows: The state, by its attorney, for replication to the second plea, says that it is wholly untrue, as alleged in said plea, that at and before the finding of said indictment the said Benj. S. Liddon, in said plea mentioned, did then and there counsel, request, and urge the said grand jury, upon the testimony before them, to find the indictment herein, and did procure the said grand jury to find and return said indictment;...

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