Ellis v. State

• Decision Date: 20 November 1889
• Citation: 25 Fla. 702,6 So. 768
• Parties: ELLIS v. STATE.
• Court: Florida Supreme Court

6 So. 768

25 Fla. 702

ELLIS v. STATE.

Florida Supreme Court

November 20, 1889

Error to circuit court, Marion county; J J. FINLEY, Judge.

Syllabus by the Court

SYLLABUS

1. The defendant filed a plea in abatement, setting up that at a former trial of the cause, in which the jury failed to agree upon a verdict, the defendant had been in jeopardy, in that at the former trial of the cause, and after the jurors were tendered and accepted, but before being sworn in chief, and before the defendant's peremptory challenges were exhausted, he challenged one W., one of the jurors tendered and accepted; that the court refused to allow the challenge and that the juror challenged sat on the jury, whereby a mistrial was had, instead of a verdict of not guilty, except for the presence of said W. on the jury. Held, that the court erred in refusing to allow the challenge to the juror, as the defendant had the right to peremptorily challenge the juror at any time before he was sworn in chief, and that, if the jury had convicted the defendant at the former trial, such error would have been cause for reversal, but that such former trial, under the circumstances, was no bar to a subsequent trial of the cause, and that there was no error in the court's treating such plea as a nullity.

2. The discharge of a jury, in case of manifest necessity, such as the sudden sickness of a juror, the illness of the prisoner or other urgent cause, will not exempt the prisoner from again being tried for the same offense.

3. Jurors, when examined as to their qualifications, should be sworn on theirvoir dire; but when a person interested objects to a juror being excused, he should make his objection before the juror is excused, and it is too late to object after the juror is excused.

4. A man is not disqualified nor exempt from jury duty by reason of being assessor of taxes for a city or town, but it is not error for a court, in the exercise of a sound discretion, to excuse a man from jury duty, when the interests of the public require the exercise of such discretion.

5. A venire man was asked upon his voir dire if he was under prosecution for any crime. He answered that he believed he was, and was thereupon excused. This was not error.

6. A venire man was asked upon his voir dire if he had formed or expressed by opinion as to the guilt or innocence of the accused. He answered that he had not. The defendant then proposed to show by witnesses that the venire man had exressed an opinion as to his (defendant's) guilt. The court refused to allow witnesses to be introduced for that purpose, whereupon the defendant challenged the juror peremptorily. The state attorney afterwards, and before the defendant had exhausted his peremptory challenges, withdrew his tender of said juror, and challenged him peremptorily. Held, that the court erred in refusing to allow witnesses introduced to show the bias of the juror, but that, as the mistake was corrected, the defendant was not injured by the ruling of the court.

7. In the trial of a cause for rape, where the prosecutrix is of tender years, and is very ignorant, it is not error for the court to permit such leading questions propounded to the prosecutrix as in his opinion may be necessary.

8. In a prosecution for rape, the fact of the woman having made complaint soon after the commission of the offense, and that she named the person who committed the offense, is evidence to go to the jury; but her detailed statement of the circumstances under which she was outrage cannot be given in evidence on the trial of the cause by the party to whom she made the statement. Such evidence is hearsay, and it is calculated to influence and mislead the jury.

9. Where a stenographer stated that he did not know that he had taken down the exact words of a witness, but thought he had got down substantially what the witness stated, the court refused to allow the notes of the stenographer to be read as evidence, but permitted him to refresh his memory by the notes, and to testify therefrom. Held not to be error.

10. A charge, 'To constitute rape it is not necessary to prove emission, but it will be sufficient if it be proven to your satisfaction that there was the slightest penetration by the prisoner's sexual organ of the sexual organ of R. D., the prosecutrix.' 'If the jury do not believe from the evidence that the prisoner did ravish and carnally know R D., the prosecutrix, by force, and against her will, then you must acquit him,'--held to be correct.

11. All objections to the summoning, impaneling, and organization of grand juries must be taken by motion or plea in abatement before pleading to the indictment. Such objection comes too late when first made on motion for new trial.

COUNSEL

Miller & Spencer, for plaintiff in error.

W. B. Lamar, Atty. Gen., for the State.

OPINION

MITCHELL J.

At the fall term of the circuit court for Marion county, in the year 1887, Joe Ellis, the plaintiff in error, was indicted for rape alleged to have been committed on Rilla Davis, a female of 10 years of age and more, and at the same term of the court he was tried, but the jury failed to agree upon a verdict, and were discharged and the cause continued. At the spring term of said court, in the year 1888, the accused was again tried, convicted, and sentenced to the penitentiary for life. Motion for new trial was denied, and the cause comes here for review upon writ of error.

The first error assigned is that 'the court below erred in overruling the defendant's plea in abatement, there being no demurrer to the same, or any motion to quash the same.'

This plea, called a plea in abatement, sets up that the defendant had formerly been in jeopardy, in that at the former trial of the cause, and after the jurors were tendered and accepted, but before being sworn in chief, and before the defendant's peremptory challenges were exhausted, he challenged peremptorily one Williams, one of the jurors tendered and accepted; that the court refused to allow said challenge; and that the juror so challenged sat on the jury, by means whereof a mistrial was had, instead of a verdict of not guilty, except for the presence of the said Williams on the jury.

This plea, if true, was not a bar to the subsequent trial of the cause; but in case of conviction at the first trial the refusal to allow the challenge would have been ground for reversal, as the defendant had the right to challenge the juror at any time before the jury were sworn in chief, provided his peremptory challenges were not exhausted. O'Connor v. State, 9 Fla. 216. The plea failing to state any reason why the defendant could not again be tried for said offense, the court below doubtless treated it as frivolous,--treated it as a nullity, as it deserved to be treated. No demurrer was necessary to dispose of such a plea.

The arbitrary discharge of the jury, against the consent of the accused, without any cause, and where no circumstances exist calling for the exercise of the discretion of the court, is a bar to his subsequent trial upon the same indictment. Grant v. People, 4 Park. Crim. R. 527; Ned v. State, 7 Port. (Ala.) 187; Com. v. Cook, 6 Serg. & R. 577. But the discharge of the jury in a case of manifest necessity, such as the sudden illness of a juror, the illness of a prisoner, or other urgent cause, will not exempt the prisoner from again being tried. U.S. v. Perez, 9 Wheat. 579; U.S. v. Haskell, 4 Wash. C. C. 402; State v. Hall, 9 N. J. Law 256; U.S. v. Shoemaker, 2 McLean, 114; Com. v. Roby, 12 Pick. 496. At the first trial of the case at bar the jury came into court, and reported that they had failed to agree upon a verdict; whereupon they were instructed by the court to again retire and consider of their verdict. The jury retired, and after wards returned into court, and reported that it was impossible for them to agree, and they were then discharged by the court, and there was no error in the court discharging them. McClel. Dig. p. 448, § 23. There was cause for discharging the jury. The ends of justice required that the prisoner should be tried again, and there was no legal reason why he could not again be tried for the same offense.

'(2) The court erred in excusing Charles W. White and Thomas Colcock from serving on the jury on their statement, without oath, that they were disqualified.'

One of these parties stated to the court that he was assessor of taxes for the town of Citra, and the other that he was assessor of taxes of Ocala, and they were excused. Counsel for plaintiff in error do not contend that either of said parties was qualified to serve on the jury, but the contention is that the court erred in not having them sworn on their voir dire. Jurors should be sworn on their voir dire for the purpose of ascertaining their qualifications. Denham v. State, 22 Fla. 664.

But when an interested party objects to a juror being excused without being so sworn, he should make the objection before the juror is excused; in other words, he should call to the attention of the court that the juror was not sworn upon his voir dire, and, if the court then refuses to have the juror sworn, it may make a ground for exception. It is too late to object that the juror was not so sworn after he has been excused.

White and Colcock were neither disqualified nor exempt from jury duty, but the offices they held at the time were public trusts, and the court in excusing them only exercised that sound discretion which the circuit courts, in the interests of the public, are frequently called upon to exercise; and whenever this is the case the appellate court will not interfere with the exercise of such discretion. John D. C. v. State, 16 Fla. 554; Metzger v. State, 18 Fla. 481.

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