English v. State

• Decision Date: 04 March 1893
• Parties: ENGLISH v. STATE.
• Court: Florida Supreme Court

12 So. 689

31 Fla. 356

ENGLISH v. STATE.

Florida Supreme Court

March 4, 1893

Error to circuit court, Brevard county; John D. Broome, Judge.

Giles English was convicted of murder in the first degree, and brings error. Affirmed. Rehearing refused.

Syllabus by the Court

SYLLABUS

1. Where the county commissioners selected the number of 248 names, instead of from 290 to 310, to constitute a list from which grand and petit jurors are to be drawn, the presumption is, in the absence of any showing that they abused the discretionary powers conferred upon them by the statute, that they performed their duty.

2. In ascertaining the meaning of the terms in a statute or a constitution, it is not only proper, but necessary, that recurrence be had to the principles of the common law from which we derive the body of our municipal law.

3. The language of section 10 of our bill of rights, that 'no person shall be tried for a capital crime or other felony unless on presentment or indictment by a grand jury, except as is otherwise provided in this constitution, and except in cases of impeachment, and in cases in the militia when in active service in time of war, or which the state, with the consent of congress, may keep in time of peace,' was designed as a guaranty and protection of the citizen against a trial in the enumerated cases in the circuit courts of this state, except upon presentment or indictment by such a grand jury as was known at the common law.

4. A grand jury at the common law was composed of not less than 12, nor more than 23, persons, and the concurrence of 12 of this number was absolutely essential to the finding of an indictment.

5. The fifth section of the act of 1891, (chapter 4015,) in so far as it provides that every grand jury shall consist of 12 persons, is constitutional; but the provision therein that the assent of 8 of that number shall be necessary to the finding of indictments is unconstitutional and void.

6. The fact that a section or a portion of a section of an act is unconstitutional does not necessarily render the whole act void. If the legislative purpose, as expressed in the valid portions of an act, can be accomplished independently of the unconstitutional portion, and, considering the entire act, it cannot be said that the legislature would not have passed the valid portion had it been known that the invalid portion must fail, effect will be given to so much as is good.

7. A venire man stated on his voir dire that he had formed and expressed an opinion in regard to the guilt or innocence of the accused, but that this opinion was not of a fixed nature and that he would be governed by the evidence. In reply to a question from the defense, the venire man stated that it would take evidence to change his opinion. The defense then challenged him for cause, and thereupon the court asked the juror if he would be influenced by the opinion he had, or would be guided entirely by the evidence which would be permitted to go to him from the witness stand, and he answered that he would be governed by the evidence allowed to go to the jury by the court. The challenge for cause was then overruled, and the juror challenged peremptorily by the defense. Held no error in overruling the challenge for cause.

8. It is not error for the court to refuse to permit a plan of a building introduced in evidence to be sent to the jury room unless all the evidence given in the case went with it.

9. Exceptions to the charges of court cannot be taken primarily in the appellate court.

10. The evidence in this case held sufficient to sustain the verdict.

On Rehearing.

(April 10, 1893.)

1. A rehearing will not be granted where the questions that the petition alleges to have been omitted from the consideration of the court were necessarily involved in and determined by the decision, though not in express terms.

2. The legal presumption is that the official acts of grand juries in finding and presenting indictments are lawfully and regularly done; and that unless 12 of their number concur in finding an indictment, properly indorsed and regularly presented, it would never have been returned or presented as such.

3. The general charge of the court to a grand jury forms no part of the record proper in the trial of any one indicted by such grand jury, but is matter in pais, and cannot be made a part of the record entitling it to consideration on writ of error unless it can be made so by bill of exceptions; and this can only be done by the judge below so long as he is at liberty to settle and sign such bill. After the expiration of the time limited by him for settling such bill he cannot add new matter thereto by amendment or otherwise.

COUNSEL

Robbins & Graham, for plaintiff in error.

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

OPINION

MABRY J.

The plaintiff in error was indicted, tried, and convicted during the fall term, A. D. 1892, or the circuit court for Brevard county, of the crime of murder in the first degree, and the sentence of death passed upon him.

To the indictment the accused filed a plea in abatement, alleging that he 'ought not to be held to answer the indictment herein found against him, for that they body presenting said indictment is not such a grand jury as is required by section 10 of the declaration of rights in the constitution of Florida to indict for felonies, in that any eight persons of said jury are given the power to find an indictment;' and, further, that he 'ought not to be held to answer said indictment because the jury list made by the county commissioners, from which said jurors were drawn, consists of but 248 names, instead of from 290 to 310 names, as required by law.' A demurrer of the state to this plea was sustained, and the questions arising under the first and third assignments of error relate to the correctness of the court's ruling on this demurrer.

It is not necessary for us to devote much space here to the second ground of the plea in abatement. What was decided in Reeves v. State, 29 Fla. 527, 10 South. Rep. 901, is applicable to this ground of the plea, as the difference between the act of 1879, (chapter 3123,) under which that decision was made, and the act of 1891, (chapter 4015, § 2; Rev. St. Append. p. 960,) under which the grand jury in the present case was selected, is not such as to render the decision inapplicable to the latter act. We must presume that the county commissioners performed their duty in selecting the number of 248 names as a jury list, in the absence of any showing that they abused the discretionary powers conferred upon them by the statute. This ground of the plea does not undertake to set up any such defense.

The tenth section of the declaration of rights in our constitution of 1885 is that 'no person shall be tried for a capital crime or other felony unless on presentment or indictment by a grand jury, except as is otherwise provided in this constitution, and except in cases of impeachment, and in cases in the militia when in active service in time of war, or which the state, with the consent of congress, may keep in time of peace.' Section 38 of article 5 reads as follows: 'The number of jurors for the trial of causes in any court may be fixed by law but shall not be less than six in any case.'

By an act of the legislature passed in 1891 (chapter 4015, § 5) it is provided that 'every grand jury shall consist of twelve persons, and the assent of eight (8) of them shall be necessary to the finding of indictments.' The grand jury that presented the indictment in the case before us was organized under this act. The first ground set up in the plea for abating the indictment is that the grand jury presenting it is not such a body as is guarantied by the declaration of rights, because eight of the number are authorized to find a true bill. It will be observed that the plea does not allege that only 8 of the 12 grand jurors found the indictment, but that the grand jury is an illegal body, because 8 of them are authorized to find the indictment. The legislature has undertaken in the act referred to above to constitute a grand jury of 12 persons, and to authorize the finding of indictments with the concurrence of 8 of [31 Fla. 345] that number, and we are now called on to say whether or not that can be done. The inhibition of the exercise of such legislative power, if it exists at all, must be found in our constitution. We think it is clear that section 38 of article 5, above referred to, has reference only to the number of jurors for the trial of causes in the courts, and can have no bearing upon the constitution or organization of grand juries. What, then, is the gruaranty to the citizen in the bill of rights that 'no person shall be tried for a capital crime or other felony unless on presentment or indictment by a grand jury,' except in the cases mentioned? In ascertaining the meaning of these terms in our constitution, it is not only proper, but necessary, that we recur to the principles of the common law, from which we derive, not only our grand-jury system, but in fact the right of jury trial, as well as the body of our municipal law. In construing statutes in reference to the qualification of jurors, Judge Sharkey said, in the case of Byrd v. State, 1 How. 163: 'As the law stood at the time of the foundation of the federal government, both the common and statute law of England required the possession of a freehold as necessary to qualify a juror; and the right of trial by jury, being of the highest importance to the citizen, and essential to liberty, was not left to the uncertain fate of legislation, but was secured by the constitution of this and all the other states as sacred and inviolable. The question naturally arises, how...