Green v. State

Decision Date18 October 1910
Citation60 Fla. 22,53 So. 610
PartiesGREEN v. STATE.
CourtFlorida Supreme Court

Headnotes Filed December 6, 1910.

In Banc. Error to Circuit Court, Duval County; R. M. Call Judge.

Jim Green, alias Jim McQueen, was convicted of murder, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A grand jury that has been discharged or dismissed may be recalled and reassembled during the same term of the court, and indictments then properly returned by them are valid, and it is not necessary in such a case for the judge to make a formal order vacating his order discharging such grand jury since the order recalling them is tantamount to a vacation of the order discharging them.

All 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 taken advantage of by plea in abatement.

Irregularities in the drawing and selection of trial jurors may be urged by a challenge to the array before going to trial. Such objections come too late after verdict and have no plea in a motion for new trial or in arrest of judgment. The defendant by going to trial before a jury without any objections waives all irregularity in the drawing, summoning, and impaneling of such jurors.

Evidence held to sustain the verdict of conviction of murder in the first degree. Parkhill, J., dissents, being of the opinion that the evidence makes out only a case of manslaughter. Parkhill, J., dissenting.

COUNSEL George Couper Gibbs, for plaintiff in error.

Park Trammell, Atty. Gen., for the State.

OPINION

TAYLOR J.

The plaintiff in error was indicted, tried, and convicted for the crime of murder in the first degree in the circuit court for Duval county, and sentenced to death, and brings this judgment here for review by writ of error.

The first assignment of error that we shall notice is the denial of the defendant's motion in arrest of judgment. This motion was predicated on the following state of facts: The grand jury that presented the indictment against the defendant, having completed their labors, had been discharged by the court, but during the same term of the court, by an order of the court, were recalled, reimpaneled, and resworn and then investigated the case against the defendant and found and returned the indictment upon which the was tried. It is contended here that the trial judge should by a formal order have first vacated in terms his former order discharging the grand jury, and then have ordered their recall. This contention is hypertechnical and cannot be sustained. The formal order made by the judge recalling the grand jury and requiring them to reassemble, and reimpaneling and reswearing them, was tantamount to a vacation of the former order discharging them. That it is lawful and proper for a grand jury that has been discharged or dismissed by the court to be recalled and reassembled during the same term of the court, and that indictments then returned by them are valid, is abundantly sustained by the authorities. 17 Am. & Eng. Ency. Law, p. 1298; 20 Cyc. 1324; Hayes v. State, 93 Miss. 670, 47 So. 522; Newman v. State, 43 Tex. 525. But besides this it is...

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18 cases
  • Lake v. State
    • United States
    • Florida Supreme Court
    • July 29, 1930
    ... ... in abatement. Such irregularities cannot be taken advantage ... of by motion in arrest of judgment or motion for a new trial ... Gladden v. State, 13 Fla. 623; Burroughs v ... State, 17 Fla. 643, text 661; Colson v. State, ... 51 Fla. 19, 40 So. 183; Green v. State, 60 Fla. 22, ... 53 So. 610, text 611; Hicks v. State, 97 Fla. 199, ... 120 So. 330 ... [100 ... Fla. 382] It is next contended that the plaintiff in error ... having been indicted as accessory before the fact, it was ... error to place him on trial without the principal ... ...
  • Cannon v. State
    • United States
    • Florida Supreme Court
    • October 20, 1911
    ...State, 43 Fla. 565, 31 So. 350; Kelly v. State, 44 Fla. 441, 33 So. 235; McLeod v. Citizens' Bank, 56 So. 190. In the case of Green v. State, 60 Fla. 22, 53 So. 610, have held that a grand jury that has been discharged or dismissed may be recalled and reassembled during the same term of the......
  • People v. Blumenfeld
    • United States
    • Illinois Supreme Court
    • June 21, 1928
    ...310 Ill. 472, 142 N. E. 208;People v. Cochrane, 307 Ill. 126, 138 N. E. 291;Brewer v. State, 137 Ark. 243, 208 S. W. 290;Green v. State, 60 Fla. 22, 53 So. 610;Cannon v. State, 62 Fla. 20, 57 So. 240;Bird v. State, 142 Ga. 596, 83 S. E. 238, Ann. Cas. 1916C, 205. It is likewise contended by......
  • Tibbs v. State
    • United States
    • Florida Supreme Court
    • July 28, 1976
    ...jury without any objections, a defendant waives all irregularity in the drawing, summoning and impaneling of such jurors. Green v. State, 60 Fla. 22, 53 So. 610 (1910); Lake v. State, 100 Fla. 386, 129 So. 833 (1930); 14 F.L.P., Jury, § 111; 20 Fla.Jur., Juries, § Appellant contends that th......
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