Cotton v. State

• Decision Date: 23 February 1923
• Parties: COTTON v. STATE.
• Court: Florida Supreme Court

95 So. 668

85 Fla. 197

COTTON v. STATE.

Florida Supreme Court

February 23, 1923

Error to Circuit Court, Escambia County; A. G. Campbell, Judge.

Herbert Cotton was convicted of murder in the first degree, and he brings error.

Reversed.

Syllabus by the Court

SYLLABUS

One not citizen or resident of state incompetent as grand juror. One who is not a citizen or resident of the state is incompetent as a grand juror.

System derived from the common law. The grand jury system of this state is derived from the common law.

One incompetent grand juror vitiates indictment when facts seasonably brought to attention of trial court. One incompetent grand juror vitiates an indictment returned by the grand jury when the facts as seasonably brought to the attention of the trial court.

Objection before arraignment by plea in abatement of accused to indictment on ground that one or more grand jurors incompetent and disqualified was in due time and proper. An objection before arraignment by plea in abatement of the accused to the indictment on the ground that one or more of the grand jurors were incompetent and disqualified was in due time and made in a proper way.

Question of incompetency and disqualification of grand juror held for the jury. An issue made by joinder of issue on a plea in abatement to an indictment alleging that one of the grand jurors returning the indictment was incompetent and disqualified because not a citizen or resident of the state is one of fact which should be tried by a jury.

Trial of issue upon plea of abatement to indictment for capital offense held not triable by a jury of six; 'criminal case less than capital.' Petit juries at common law consisted of twelve men. By statute in this state criminal cases less than capital may be tried by a jury of six. But a jury to try a capital case must consist of twelve men. Trial upon a joinder of issue upon a plea in abatement to an indictment for a capital offense alleging facts which if proved, would vitiate the indictment, is not a criminal case less than capital authorized by statute to be tried by a jury of six.

Trial of issue on plea of abatement to indictment for capital offense by jury of six held denial of right of jury trial. The trial of an issue made by a joinder of issue on a plea in abatement to an indictment for a capital offense, alleging facts which, if proved, would vitiate the indictment, should be tried by a jury of twelve, and a trial of such issue, over objection of the accused, by a jury of six, amounts to a denial to him of a jury trial such as he is entitled to under the law.

Trial on indictment for capital offense by a jury of less than twelve jurors held denial of constitutional right. Denial to one indicted for a capital offense of the right of trial by a jury of twelve jurors results in a lack of the due process of law that is demanded by the Constitution.

Number of jurors may be fixed by law, but shall not be less than six. Under Const. art. 5, § 38, the number of jurors for the trial of causes in any court may be fixed by the law, but shall not be less than six in any case.

Criminal cases less than capital and civil causes triable by a jury of six. Under Rev. Gen. St. 1920, §§ 2694 and 6008, criminal cases less than capital and civil causes are tried by a jury of six.

COUNSEL

Forsyth Caro, Philip D. Beall, and John M. Coe, all of Pensacola, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.

OPINION

WEST J.

Upon an indictment charging murder in the first degree, plaintiff in error was tried and found guilty as charged. Sentence of death was pronounced against him. Writ of error was taken from this court to review the judgment imposing sentence.

On the day the indictment was returned, and before arraignment, the defendant filed a plea in abatement to the indictment which, omitting formal commencement and conclusion, is as follows:

'That Carr Sandusky was one of the jurors of the grand jury by whom the said indictment was found and returned into court here; that the said Carr Sandusky is not a resident of county of Escambia, state of Florida; that the said Carr Sandusky is not a resident of the state of Florida; that the said Carr Sandusky has not resided in Escambia county Fla., for six months last past; that the said Carr Sandusky has not resided in the state of Florida for one year; that the said Carr Sandusky is not a citizen of the state of Florida; that the said Carr Sandusky is a resident of the city of New Orleans, in the state of Louisiana; that the said Carr Sandusky is now in the city of Pensacola, Escambia county, Fla., on a temporary visit; that the said Carr Sandusky has not resided in the county of Escambia, or the state of Florida, during the six months last past. That therefore the said Carr Sandusky, one of the jurors of the grand jury by whom the said indictment was found and returned into court here, was not when said grand jury was impaneled, or afterward, or when it found said indictment, or when it returned the same into court here, a resident of Escambia county, Fla., for six months, a resident of the said state of Florida for one year, or a citizen of the state of Florida, and this the defendant, Herbert Cotton, is ready to verify.'

Upon a trial of the issue presented by joinder of issue on this plea there was a verdict for the state and judgment accordingly.

If the juror named in the plea in abatement was a nonresident of the county and state and not a citizen of the state, he was ineligible to jury service and incompetent as a grand juror. Section 2771, Rev. Gen. Stat. At common law from which our grand jury system is derived, one unqualified and incompetent juror on the grand jury vitiates an indictment returned by it, provided the objection to the indictment is seasonably brought to the attention of the court. It may be presented by plea in abatement before arraignment of the accused and issue joined by plea in bar to the indictment. Kitrol v. State, 9 Fla. 9; Crowley v. United States, 194 U.S. 461, 24 S.Ct. 731, 48 L.Ed. 1075. 'This necessity for the grand inquest to consist of men free from all objection existed at common law, and was affirmed by the statute 11 Hen. 4, c. 9, which enacts, that any indictment taken by a jury, one of whom is unqualified, shall be altogether void and of no effect whatsoever.' Chitty's Crim. Law, vol. 1, p. 309. These authorities...