Cannon v. State

• Decision Date: 20 October 1911
• Citation: 62 Fla. 20,57 So. 240
• Parties: CANNON et al. v. STATE.
• Court: Florida Supreme Court

57 So. 240

62 Fla. 20

CANNON et al. v. STATE.

Florida Supreme Court, Division B.

October 20, 1911

Headnotes Filed Jan. 19, 1912.

Error to Circuit Court, Polk County; J. B. Wall, Judge.

Thomas C. Cannon was convicted of murder in the second degree, and Simeon S. Driggers of manslaughter, and they bring error. Affirmed.

Syllabus by the Court

SYLLABUS

Pleas in abatement, being dilatory, are not favored by the courts and must be strictly construed, they must be certain to certain intent in every particular, they must be unambiguous and must leave nothing to be supplied by intendment, and must leave no supposable special answer unobviated.

A grand jury that has been discharged or dismissed may be recalled and reassembled during the same term of the court, and proper indictments then properly returned by them are valid.

By a special order a term of our citcuit court may be adjourned or recessed over to a fixed date until after the sitting of the court in another place or county, and in such case, upon reassembling at the date fixed in the order of adjournment it will be but a continuation of the same original term, and a grand jury that has been discharged may be then lawfully recalled and reassembled, and and proper indictment then properly returned by them will be valid.

When a grand jury investigates a case before them by examination of witnesses, and upon such investigation presents an indictment, but in such indictment makes a mistake in a name therein set forth, or in any other respect, and such grand jury is subsequently recalled to correct the mistake, and they do correct it by returning a new and correct indictment it is not necessary to the validity of such new and corrected indictment that such grand jury should, before returning it have re-examined and reheard the witnesses upon whose evidence the first incorrect indictment was found.

Every indictment must be found and presented by at least 12 members of the grand jury, but it is not necessary to the validity of an indictment that all of such grand jury above that number should be either present or consenting.

Where the following statements in the briefs of counsel: 'We are of the opinion that the motion for new trial should have been sustained by the lower court for the reasons set out in the motion.' 'None of the assignments of error are abandoned; we insist on them all'--constitute the only argument or presentation here of an assignment of error predicated on the denial of the motion for new trial, held, that this is but a reiteration of the assignment of error, without any argument, and is an abandonment of such assignment here.

COUNSEL L. E. Roberson, for plaintiffs in error.

Park Trammell, Atty. Gen., and C. O. Andrews, for the State.

OPINION

TAYLOR J.

The plaintiffs in error, as defendants below in the circuit court of Polk county on an indictment charging them with murder in the first degree, were convicted, the defendant Thomas C. Cannon of murder in the second degree, and the defendant Simeon S. Driggers of manslaughter, and were sentenced as the law provides, and seek a reversal of the sentences imposed by writ of error.

Before pleading in bar, the defendants interposed the following plea in abatement:

'Now come the said Thomas C. Cannon and Simeon S. Driggers in their own proper persons in the court here, and, having had the said indictment read, saith that the state ought not further to prosecute the said indictment against them, the said Thomas C. Cannon and said Simeon S. Driggers, because they saith that heretofore, to wit, on the 21st day of March, 1911, the said circuit court was convened for the spring term of the said court in said county, at which time a grand jury was duly impaneled for the transaction of such business as might come before it, and that on the 24th day of March, 1911, said grand jury, having completed its labors, made its final report to said court, and was duly discharged by his honor, the judge of said court, for said term and allowed to go hence; that on the 25th day of March, 1911, his honor, the circuit judge, adjourned the said spring term of said court, all of which more fully appears by the records of said court; that on the 6th day of April, 1911, his honor, the circuit judge, recalled the said grand jurors by a writ to the sheriff of said court, requiring the presence of the said grand jurors on the 7th day of April, 1911, at 9 o'clock a. m., for the purpose of having the said grand jury reindict these defendants; that on the forenoon of April 7, 1911, 16 members of the previous grand jury answered to the call of their names, W. K. Keen and C. C. Hardin of the original panel not answering and not appearing. Whereupon the court administered to said 16 the formal oath to diligently inquire and true presentment make of all such matters as shall come to their knowledge, and then charged said body that it had been discovered a mistake had been made in the indictment against these defendants in the name of the deceased, and instructed them to retire to their rooms and investigate said case. Whereupon said body of 16 grand jurors repaired to their room, and without having heard any testimony on said date returned into court the indictment here pleaded unto. These defendants allege that said indictment so returned against them is illegal and of no effect for the following reasons:

'First, that said grand jury was illegally constituted and assembled, in that they were not drawn and selected in the manner required by law.

'Second, because said grand jury was charged by the court to investigate said case and did not do so.

'Third because said grand jury found and returned said indictment as a true bill without having heard any testimony or having any witnesses before them on said date, and so the said Thomas C. Cannon and the said Simeon S. Driggers say that the action of the said grand jury on the 7th day of April, 1911, in indicting these defendants, was and is illegal. And the said Thomas C. Cannon and the said Simeon S. Driggers in fact saith that they are the same parties so indicted and named in said indictment of said grand jury on the 7th day of April, 1911, and not other and different persons. And this the said Thomas C. Cannon and the said Simeon S. Driggers are ready to verify; therefore they pray judgment...