Buchanan v. State

• Decision Date: 31 May 1929
• Citation: 122 So. 704,97 Fla. 1059
• Parties: BUCHANAN v. STATE.
• Court: Florida Supreme Court

122 So. 704

97 Fla. 1059

BUCHANAN v. STATE.

Florida Supreme Court, Division A.

May 31, 1929

Error to Circuit Court, Taylor County; Hal W. Adams, Judge.

J. W Buchanan was convicted of murder, and he brings error.

Affirmed.

See also, 95 Fla. 301, 116 So. 275.

Syllabus by the Court

SYLLABUS

Where list of jurors selected was valid and sufficient, clerk's error in copying and recording list did not invalidate it (Comp. Gen. Laws 1927, §§ 4443, 4444 et seq.; §4453). Where board of county commissioners selected list of 250 jurors, as required by Comp. Gen. Laws 1927, §§ 4443, 4444 et seq., so that list was valid and sufficient, clerk's error in omitting three names when copying and recording list, under section 4453, did not invalidate it.

Defendant by going to trial without objecting to invalidity of selection of jury, waived illegality, and attack by motion in arrest was too late. Defendant in murder prosecution, by going to trial without objection to legality of selection or drawing of jury, waived objection, and attack made by motion in arrest came too late.

Circumstantial evidence must be strong enough to convince jury of defendant's guilt to moral certainty. Circumstantial evidence should be acted on with great caution and must be strong enough to convince jury of guilt of defendant beyond reasonable doubt and to moral certainty.

Circumstantial evidence, to warrant conviction, must be inconsistent with any reasonable theory of innocence. Circumstantial evidence to warrant conviction, must not only be consistent with defendant's guilt, but must be inconsistent with any reasonable theory or hypothesis of his innocence.

In murder prosecution, it was within jury's province to disblieve defendant's testimony in whole or in part. It was within province of jury to disbelieve defendant's testimony in murder prosecution in whole or in part, or at least wherein it was contradicted by other evidence, or was inherently incredible or inconsistent with physical facts.

Evidence held sufficient to sustain conviction for murder. In prosecution for murder, evidence held sufficient to sustain conviction.

It is jury's function to make inferences and deductions from circumstantial evidence. It is function of jury to make inferences and deductions from circumstantial evidence, and, so long as deductions and inferences are not unreasonable, court should not set them aside.

In murder prosecution, instruction, if erroneous because premitting jury to find deceased officers entered defendant's home either by invitation or lawful authority, where search warrant found in deceased officer's pocket was not admitted, held harmless where defendant admitted he consented to search and court charged on defendant's right to use force to prevent invasion of home. In murder prosecution, where search warrant found in pocket of deceased officer was not admitted in evidence, but jury had been informed in another connection that such search warrant was found by sheriff, instruction, if erroneous because permitting jury to find from evidence that deceased officers entered defendant's home either by invitation or lawful authority held harmless where defendant had admitted in his testimony that he consented to search and court instructed that, if officers while on premises with or without right assaulted defendant or attempted to invade his home, he had right to stand ground and use force appearing necessary to cautious and prudent man to protect home from invasion or himself from harm.

In murder prosecution, state attorney's reference to guilt of defendant in another case held not prejudicial. Where defendant had already been convicted of killing another person in same encounter, statement of state's attorney in murder prosecution with reference to the guilt of defendant in some other caseheld not prejudicial.

COUNSEL

W. C. Hodges, of Tallahassee, and Davis & Pepper, of Perry, for plaintiff in error.

Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BROWN J.

Plaintiff in error was convicted, without recommendation, in the circuit court for Taylor county of the murder of W. C. Mobray, and sentenced to death. The judgment of conviction is before us on writ of error.

A motion in arrest of judgment was filed by plaintiff in error, containing several grounds. Only one of them is insisted upon in argument. That ground alleges that the board of county commissioners, in making up the list of jurors, from which came the jurors rendering the verdict, did not make out a list of not less than 250 persons as required by the statute and the order of the court. The statute referred to is chapter 12068 of the Laws of 1927, amending sections 2771-2772, and other sections of the Rev. Gen. Statutes, and now appears as section 4443, 4444, et seq., of Compiled General Laws. Section 4444, C. G. L., requires the county commissioners to hold a meeting in the first week of January of each year, or as soon thereafter as practicable, or at such other times as the circuit judge may order and personally select and made out a list of not less than 250 nor more than 500 persons properly qualified under the provisions of section 4443, C. G. L., to serve as jurors, and possessing certain other qualifications set forth in section 4444, which list shall be signed and verified by the said commissioners as having been personally selected as aforesaid and as possessing the prescribed qualifications according to their best information and belief; that said list shall be forthwith delivered to the clerk of the circuit court and recorded by him in the minute book of the board of county commissioners. Section 4453, C. G. L., provides that the clerk of the circuit court shall, on receiving such list, in the presence of the county judge and sheriff, write the names of the persons contained in said list on separate pieces of paper, and roll or fold the same so that the names written therein will not be visible, and deposit the same in the jury box.

It appeared from the evidence submitted in support of the motion in arrest that the list as recorded on the minute book of the county commissioners contained only 247 names; but the state proved by the clerk and his deputy that the list delivered to the clerk by the county commissioners contained 250 names, and that in copying the list in the minute book 3 names were by clerical error omitted. The clerk was not able to produce the original list, which he said he had put in the jury box, but he did produce a duplicate carbon copy, signed and certified by the county commissioners. He said that the commissioners delivered the two lists in duplicate, both signed and certified, and that he considered them as in effect duplicate originals, though one was a carbon copy of the other, and he produced and identified the signed and certified carbon copy. Whether this copy be considered as an original document or not, it is very strong evidence that the original list contained the requisite number of names. In Keech v. State, 15 Fla. 591, it was held that the object of recording the list is to preserve upon the records the list of names and for the information and convenience of the court, but that 'It can scarcely be said that the omission of the clerk to record the certificate, or even the list, is an irregularity in respect to the selection, summoning or empaneling of jurors. If the clerk neglects to perform such duty as directed by the statute, the court may require and compel him to do it at any time, and thus the omission is cured. The accused cannot be prejudiced by it.' Thus it appears that the contention that the list as recorded in the minutes must be deemed as controlling evidence as to what the list contained, although the list itself showed something to the contrary, is not well founded. Under the statute, it is the list which is required to be made, signed, and certified by the county commissioners. It is merely a ministerial duty of the clerk to copy it into the minute book, and if the list be valid and sufficient, an error in so copying and recording the same would not invalidate the list. It may well be that, if the list so signed and certified by the county commissioners should be lost or destroyed and no satisfactory or legal evidence of its contents could be produced, the copy made on the minutes might be deemed a true copy and record in the absence of clear evidence that it was in fact not a true copy. But in this case the state produced very convincing evidence to the court that the original list did in fact contain the requisite number of names, and the deputy clerk, who copied same in the minutes, explained very plausibly how it probably happened, that, in so recording the same on the minutes, the three names were overlooked and omitted. The court below was not in error in holding that the motion was not sustained by the evidence.

Besides this, such a defect as was alleged in the motion in arrest should have been presented before pleading in bar and going to trial, by a challenge to the array of the petit jury under the old rule as laid down in Gladden v. State, 13 Fla. 623; Reeves v. State, 29 Fla. 527, 536, 10 So. 901; and Green v. State, 60 Fla. 22, 53 So. 610; or by plea in abatement, as has been held permissible in Colson v. State, 51 Fla. 19, 40 So. 183; Hicks v. State (Fla.) 120 So. 330. When the attack is not upon the legality of the trial jury, but is made against the validity of an indictment on account of some illegality in the selection, drawing, or impaneling of the grand jurors, plea in abatement is usually the only proper remedy, as shown by the cases above cited and others which might be cited, though there appears to be some qualification of this rule in...