Custer v. State
| Decision Date | 15 July 1947 |
| Parties | CUSTER v. STATE. |
| Court | Florida Supreme Court |
On Rehearing Feb. 20, 1948.
Appeal from Circuit Court, Broward County; George W. Tedder judge.
Whitaker Brothers, of Tampa, and Roach & Hoyl, of Fort Lauderdale, for appellant.
J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
No error appearing, the judgment is affirmed.
I am unable to concur in the proposed judgment of affirmance because I am convinced that at least two errors are shown by the record which require reversal.
My very fixed view is that in reviewing judgments of conviction of crime to determine whether or not a lawful conviction has been had we should not allow ourselves to be influenced by the heinousness of the alleged crime, by the applicable punishment or by the creed, nationality or color of the accused.
This is true because every man is, before the law, presumed to be innocent until he has been tried in a court of competent jurisdiction where he has pleaded guilty or has been found guilty by a jury which has been lawfully selected, drawn, empaneled and sworn to try the issues.
I apprehend that there is no one thing more vital to the freedom of the people or to the protection of life, liberty and property than is the integrity of the jury box. When the question of the integrity and validity of the jury box is presented, then that question should be first settled without any consideration of the question of the guilt or innocence of the accused because the issue of his guilt may only be determined by a lawful jury. If the jury panel be challenged because of the illegality, no court may go further without first adjudicating the issue of legality. If the jury is found to be illegal, then the court can no more function legally with that illegal jury than it could legally accept the verdict of a vigilance committee organized on the street.
The selection of a jury list, recording the same, and placing the names of the persons so selected in the jury box and then keeping the names so placed in that box secure and inviolate, except when drawn one at a time by the judge, or by his order, for jury duty, are not merely clerical acts; they are mandatory official acts done and exercised as attributes of sovereignty in safeguarding liberty and property.
On May 31, 1946, indictment was returned in the Circuit Court of the Fifteenth Judicial Circuit in and for Broward County, Florida, charging Jack Riley Custer with the crime of rape.
On June 5, 1946, the defendant was arraigned and pleaded not guilty. On July 9, 1946, defendant filed his motion to be allowed to withdraw his plea of not guilty and file what he termed a plea in abatement and challenge to the array of jurors summoned and brought into court to try the issues in this case. With this motion defendant tendered his so-called plea in abatement and challenge to the array of jurors. The document filed is properly a challenge to the array and not a plea in abatement. This is material because a plea in abatement goes the validity of the indictment and therefore, must be entered prior a plea in bar, unless the court in the exercise of its discretion, allows a plea in bar be withdrawn and a plea in abatement be filed. A challenge the array may be interposed at any time prior the empaneling of the jury and only goes challenge the venire which has been summoned try the cause.
In the challenge to the array it was shown by sufficient and definite allegations that a jury list was duly made up by the Board of County Commissioners of Broward County, Florida, on the 2nd day of January, 1946; that said list was forthwith delivered to the Clerk of the Circuit Court of said County and by him duly recorded in Minute Book of the Board of County Commissioners; that on the 22nd day of January, 1946, the Clerk did write the names of the persons appearing on said jury list on separate pieces of paper and did fold each piece of paper so that the names written thereon were not visible and did deposit such pieces of paper in a jury box so constructed that it could be tightly closed and that the said box was securely locked and across the opening thereof was placed a label or seal containing the signature of the Clerk and the date of the closing of said box, which said box was kept in his custody and the key to said box was delivered to the Sheriff of the County; that on the same date, January 22, 1946, the County Judge of said County, Boyd H. Anderson, did make a certificate, as follows:
'I, Boyd H. Anderson, County Judge of Broward County, Florida, do hereby certify that the Clerk of the Circuit Court in the persence of myself and Walter R. Clark, Sheriff, did write the names of persons contained in the jury list as selected by the Board of County Commissioners of Broward County, on the 2nd day of January A.D. 1946, on separate pieces of paper, and did fold such pieces of paper so that the names written thereon were not visible and did deposit such pieces of paper in a box so constructed that it could be tightly locked, and said box was securely locked and across the opening thereof was placed a label or seal containing the signature of the said Tex Cabot, and the date of the closing of said box.'
That a like certificate was made on the same day by Walter R. Clark as Sheriff of said County. That then and thereby the said jury list of jurors for the said county and the jury box containing the names of the jurors on such jury list was established for Broward County for the year 1946; that on June 17, 1946, Circuit Judge George W. Tedder, apprehending and believing that said jury list and the said jury box in the said county was about to be depleted of names of jurors, issued an order as Judge of said Circuit Court, directing selection of an additional jury list as follows:
'It appearing to the Court that the list of jurors prepared by the Board of County Commissioners of Broward County, Florida, in accordance with law, in January 1946, will soon become exhausted and that additional jurors will be necessary for the trial of causes by a jury, therefore, it is considered ordered and adjudged that the County Commissioners of Broward County, Florida, at their next regular meeting, select in accordance with law and make out a list of not less than two hundred fifty (250) nor more than five hundred (500) persons properly qualified to serve as jurors in said county; said list to be signed and verified by said Commissioners as provided by law.'
That on June 25, 1946, the County Commissioners of Broward County or a majority of them, met and selected the names of 483 additional jurors to be added to the jury list and with which to replenish the said names of jurors and did make and file their certificate of their doings in this regard as required by law.
That the said list so made by the County Commissioners on said 25th day of June, 1946, was turned over to the Clerk of the Circuit Court and by him recorded in the Minute Book of the County Commissioners of said County and thereafter, on the 25th day of June 1946, Ted Cabot as Clerk of the Circuit Court of Broward County by his Deputy Clerk, Zenda Alexander, made and filed the certificate showing the foregoing action and certifying that he did, in the presence of the County Judge and Sheriff, write the names of the persons contained on said list on separate pieces of paper and did fold said pieces of paper so that the names written thereon were not visible and did deposit such pieces of paper in a box so constructed that it could be tightly closed and that said box was securely locked and across the opening thereof he placed a label or seal containing the signature of the Clerk and the date of closing of the box, and that the box was kept in his custody and the key to the box was delivered to the Sheriff of Broward County. This certificate was supported by like certificates made by Boyd H. Anderson, County Judge, and by Walter R. Clark, as Sheriff.
It is further averred that the jury box containing list of persons selected for jury duty in the said County referred to in the certificates on June 25, 1946, is one and the same box referred to as selected and established in January, 1946.
It is then alleged that the names in said jury box of persons selected for jury duty in January, 1946, had not been exhausted and that it contained the names and list of persons qualified to serve as jurors on June 25, 1946, of some 40 to 45 persons theretofore selected and the names of more persons than were drawn and selected on the 29th day of June, 1946, to serve on the present panel of jurors and summonsed and now appearing in court to try the case. ...
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