Carroll v. State

• Decision Date: 11 July 1939
• Citation: 190 So. 437,139 Fla. 233
• Court: Florida Supreme Court
• Parties: CARROLL v. STATE.

190 So. 437

139 Fla. 233

CARROLL v. STATE.

Florida Supreme Court, Division A.

July 11, 1939

Rehearing Denied July 24, 1939.

Error to Court of Record, Escambia County; R. Pope Reese, Judge.

Moreno Carroll, alias Jones Carroll, was prosecuted under an information charging the illegal sale of intoxicating liquors, and to review a judgment he brings error.

Reversed.

COUNSEL Philip D. Beall, Jr., of Pensacola, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for the State.

OPINION

THOMAS Justice.

Moreno Carroll, plaintiff in error, and another were charged in an information with illegal sale of intoxicating liquors. The case was set for trial and on that day they were arraigned and pleaded not guilty. The selection of a jury was then begun and the proceedings which formed the basis of the first ground of the motion for new trial and a subsequent assignment of error may best be described in the following excerpts from the certificate of the trial judge:

'I * * * hereby certify that during the progress of the above cause * * * wherein * * * Moreno Carroll * * * and Virgie Carroll were defendants, the following proceedings were had, to-wit: * * * the Court proceeded with the selection of a Jury, and after the defendants jointly had exhausted four peremptory challenges and before the jury had been selected and before the State had tendered the jury the State orally moved for a severance as to the defendant Virgie Carroll, to which said motion the defendant Moreno Carroll, alias Jones Carroll, objected, upon the ground that said defendants jointly were entitled to ten peremptory challenges and that the sole purpose of the motion for a severance was to deprive the defendant Moreno Carroll, alias Jones Carroll, of any more peremptory challenges than the one additional challenge remaining to him. That thereupon said motion for severance was granted by the Court, and that thereupon the defendant Moreno Carroll, alias Jones Carroll, was allowed one additional peremptory challenge and no more, in accordance with which the selection of the Jury was completed.'

It will be seen that while the jury was being chosen and before the severance was requested the two defendants jointly challenged four talesmen. After it was granted the remaining defendant, according to the certificate, was limited to one further challenge, the four former ones having been deducted from the total number of five allotted him under the law which we will cite.

This statute, Sec. 8303, C.G.L.1927, allows each defendant charged with a felony to excuse five jurors without cause and permits the State five peremptory challenges for each defendant.

At the outset plaintiff in error was privileged to excuse five jurors and his co-defendant was entitled to the same advantage. Four challenges were used without designating in whose name they were exercised, indeed,...