Cruce v. State

• Decision Date: 15 April 1924
• Citation: 100 So. 264,87 Fla. 406
• Parties: CRUCE v. STATE.
• Court: Florida Supreme Court

100 So. 264

87 Fla. 406

CRUCE v. STATE.

Florida Supreme Court

April 15, 1924

Error to Circuit Court, Taylor County; M. F. Horne, Judge.

Jack Cruce was convicted of murder in the second degree, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Plea in bar waiver of irregularity raised by plea in abatement objections to grand jurors must be by plea in abatement before pleading in bar. Objections to the legality of grand jurors must be made by plea in abatement to the indictment before pleading in bar; by pleading in bar the defendant waives any irregularity that may have been raised by plea in abatement.

Foreman of grand jury and defendant held not 'brothers-in-law.' The husband of defendant's wife's sister is not brother-in-law to defendant; two men are not brothers-in-law from the circumstance merely of having married sisters--(citing Words and Phrases, First Series, 'Brother-in-law').

When refusal to charge on law of self-defense not error stated. There is no error in refusing to give requested charges incorrectly defining the law of self-defense, nor when the charges are inapplicable to the evidence, nor when the law of self-defense has been correctly given by the court in its general charge.

Clothing worn by deceased admissible to show number and location of wounds. Where the state in a prosecution for murder undertakes to show the number and location of the wounds upon the body of the deceased, it is permissible to introduce in evidence the clothing worn by the deceased at the time he was shot, even though subsequently to his death his clothes had been washed and cleaned of the blood and dirt with which they were soiled.

Discretion as to leading questions not interfered with in absence of abuse. The discretion exercised by the trial court in permitting leading questions and in restricting them will not be interfered with, where there has been no abuse of such discretion to the injury of the defendant.

Ruling that witness of tender years is unqualified not disturbed where fact to be shown is not disclosed. The ruling of a trial court that a proposed witness of tender years is unqualified by reason of age and inexperience will not be reversed, where it is not shown what fact is intended to be established by such proposed witness.

Evidence examined, and found sufficient to sustain verdict of murder in the second degree.

COUNSEL

W. P. Chavous, of Cross City, for plaintiff in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

The plaintiff in error, Jack Cruce, hereinafter referred to as the defendant, was convicted of the murder of Buck Edenfield. Upon writ of error the judgment was reversed on rehearing because of an erroneous definition of murder contained in the trial court's charge to the jury. See Cruce v. State, 84 Fla. 191, 93 So. 134.

Upon a second trial the defendant was convicted of murder in the second degree. The first assignment of error rests upon the order of the court denying the defendant's motion, when he was put upon trial the second time, for leave to file a plea in abatement. The point desired to be presented by the plea was that the foreman of the grand jury of Taylor county which returned the indictment against the defendant, was the husband of the sister of defendant's wife. Therefore, says counsel for defendant, the foreman of the grand jury and the defendant being 'brothers-in-law,' the indictment is invalid. The indictment was presented in September, 1921. The defendant had pleaded not guilty, was tried, convicted of murder in the first degree, obtained a reversal of the judgment, and was put upon trial for the second time on the same indictment in October, 1922.

There was no error in the court's ruling. A plea in abatement, presenting objections to grand jurors, is waived by the plea of not guilty. See Green v. State, 60 Fla. 22, 53 So. 610; Colson v. State, 51 Fla. 19, 40 So. 183.

Counsel submits neither authority nor argument in support of his contention that the circumstance of the foreman having married the sister of defendant's wife vitiated the indictment, but asserts that the denial of the motion to allow the defendant to interpose such a plea was a denial of 'protection' to him which might have been accorded to a 'millionaire.' Such expressions are much to be regretted, and, of course, are never appropriate when applied to the courts of justice in our country.

All lawyers know, or should know, that justice is administered in a free country according to rule. When a judge substitutes his idea of substantial justice for a rule of law the way may be said to be paved for discriminations between men of moderate or little means and 'millionaires'; but that criticism cannot be made, with even a semblance of right, of the honorable circuit court for the Third judicial circuit.

The rule, long since established in this state, and resting in sound considerations of justice and public interest, is that objections to the legality of grand jurors may be waived by the defendant, and by a plea in bar he makes such waiver. If the point desired to be presented possessed any merit, it does not clearly appear from the motion why counsel did not present it at the first trial, as he had undertaken the defense two days before such trial. The defendant's lack of 'financial means' did not preclude him from informing his counsel that the foreman of the grand jury was the husband of defendant's wife's sister. Such fact was not a ground of challenge to the favor applicable to grand jurors. Section 5954, Revised General Statutes; Peeples v. State, 46 Fla. 101, 35 So. 223, 4 Ann. Cas. 870; Oglesby v. State, 83 Fla. 132, 90 So. 825.

The defendant and the foreman of the grand jury were not brothers-in-law from the circumstance of having married sisters. See 1 Words & Phrases, First Series, 885; Farmers' Loan & Trust Co. v. Iowa Water Co. et al. (C. C.) 80 F. 467; 1 Pope, Legal Definitions, 177; 1 Bouvier's Law Dictionary, 400; Webster's New International Dictionary of the English Language, 282.

But, even if such relation had existed, counsel does not make it at all clear why Mr. Courtney, the foreman, should not have served as a grand juror.

The first assignment of error and the second, which presents the same question, are not sustained.

The court instructed the jury as follows:

'If you find from the evidence in this case beyond a reasonable doubt that the defendant unlawfully killed the deceased as alleged in the indictment, and that such killing was perpetrated by an act imminently dangerous to another, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, then you should find the defendant guilty of murder in the second degree.'

It is objected that such is not the statutory definition of murder in the second degree, but we are not advised by counsel in what the difference consists between the language of the statute and the charge quoted. See section 5035, Revised General Statutes.

The defendant, through his counsel, requested the court to instruct the jury as follows:

'That, if you find from the evidence in this case that the deceased shot the defendant first, then you should find the defendant not guilty.'

This request was denied, and the court's action is made the basis of the fourth assignment of error.

The fifth and sixth assignments of error rest upon the court's refusal to give the following instructions requested by the defendant:

'That, if you find from the evidence in this case that the deceased went to the home of the defendant's, called him out, and unlawfully shot him, then you should find the defendant not guilty.

'That, if you find from the evidence in this case, or that if you find from the facts and circumstances in and surrounding the case that the deceased, armed with a deadly weapon, went to the home of the defendant for the purpose of bringing about a difficulty with the defendant, and was killed by the defendant under such circumstances, then you should find the defendant not guilty.'

There was no error in the refusal by the court to give such instructions. The law of the case, as applied to the facts, was clearly stated in charges given by the court to the jury, who were fully instructed in the law of self-defense. Aside from the fact that the requested instructions were not applicable to the evidence, they do not, as abstract propositions, correctly define the law of self-defense.

The material facts in the case, which are buried beneath a burden of immaterial matter, are as follows: The deceased, who was a small man in stature, left his house some time during the morning of August 17, 1921, and, stopping for a few minutes at the home of a man named Pridgen, went to a field fence inclosing his lands to make some repairs upon it. This fence was about 150 yards east of the house occupied by the defendant and his family. A railroad track lay between the house and the fence. At the point where the deceased was at work on his fence the railroad track ran through a cut, the dirt being piled on the east, or fence side, about 4 or 5 feet high. The defendant came from his house armed with a shotgun loaded with small shot and buckshot, entered the railroad cut, approached the deceased said to him, 'I have got you where I want you,' and prepared to shoot the deceased, who immediately drew 'his gun,' a pistol, and both he and defendant fired, each at the other. The deceased was struck and fell. The defendant fired again upon the fallen man; returned to his house; came back to the scene, and again fired upon the wounded man, who was lying in the 'fence jam.' There was...