Green v. State

• Decision Date: 13 April 1898
• Parties: GREEN v. STATE.
• Court: Florida Supreme Court

23 So. 851

40 Fla. 191

GREEN v. STATE.

Florida Supreme Court

April 13, 1898

Error to circuit court, Hamilton county; John F. White, Judge.

Israel Green was convicted of murder in the first degree, and from the sentence of death he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. If the court erroneously overrules a challenge for cause, and thereafter the challenging party excludes the obnoxious juror by a peremptory challenge, he cannot be injured by such ruling unless it appears that, before the jury was sworn, his quiver of peremptory challenges was exhausted.

2. The mere fact that the name of a particular person is twice drawn from the same jury box in one year, where there is no evidence that the name was placed in the box on two separate slips of paper intentionally, or fraudulently, or from any improper motive on the part of the officials charged with the preparation of the box, or other person, is no ground for challenge to the array of a special venire containing the second drawing of such name.

3. The law does not exclude evidence of confessions made to an officer even though the party making them be at the time in prison. The fact that they were made to an officer by a prisoner may be considered by the court in determining whether the confession was free and voluntary, or produced by duress, hope of reward, or other improper influence; but, if found to be otherwise admissible, the confession should not be excluded for this reason alone.

4. In an indictment against seven persons, charging that all of them assaulted deceased with a premeditated design to effect death, that one of them committed a felony by murdering the deceased, while the others, from a premeditated design to effect death, were feloniously present, aiding, abetting, and assisting in the commission thereof, all are indicted as principals,--the one in the first degree, and the others in the second degree. In such case a conviction against all of them will be sustained on proper proof that either one committed the murder, and that the others were present aiding and abetting in the commission of the same; and the acquittal or conviction of a lesser offense than murder in the first degree of any one does not operate as a bar to the conviction of another of murder in the first degree.

5. An instruction to the jury that 'the prisoner's statement should be weighed by you like all other testimony and you may, if you see fit, base your verdict on it alone,' is properly refused.

COUNSEL B. B. Johnson, for plaintiff in error.

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

OPINION

CARTER J.

The plaintiff in error was convicted of murder in the first degree, at the fall term, 1897, of the circuit court of Hamilton county, and, from the death sentence imposed upon him, sued out this writ of error. The indictment charged 'that Jake Blue, Israel Green, Abe Dixon, Will Murphy Dave Mitchell, Gilbert George, and Boykin Brown, late of said county, on the 24th day of July, A. D. 1896, at and in the county and state aforesaid, with force and arms, and with a deadly weapon, to wit, a pistol, which said pistol was then and there loaded and charged with gunpowder and leaden bullets, and which the said Jake Blue then and there had and held in one of his hands, in and upon one G. M. Fletcher unlawfully, of their malice aforethought, and from a premeditated design to effect the death of the said G. M. Fletcher, did make an assault; and the said Jake Blue did then and there unlawfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said G. M. Fletcher, shoot off and discharge the pistol aforesaid, so loaded and charged as aforesaid, at, towards, against, and upon the said G. M. Fletcher; and the said Jake Blue did then and there unlawfully, feloniously, of his malice aforethought, designing to effect the death of the said G. M. Fletcher, strike, penetrate, and wound the said G. M. Fletcher with one of leaden bullets aforesaid, so shot off and discharged out of the pistol aforesaid, thereby giving and inflicting unlawfully, and from a premeditated design to effect the death of the said G. M. Fletcher, in and upon the body of the said G. M. Fletcher, one mortal wound, of the depth and breadth to the jurors unknown, of and from which mortal wound the said G. M. Fletcher then and there instantly died. And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Israel Green, Abe Dixon, Will Murphy, Dave Mitchell, Gilbert George, and Boykin Brown were then and there present, unlawfully and from a premeditated design to effect the death of the said G. M. Fletcher, aiding, abetting, assisting, comforting, procuring, encouraging, counseling, and commanding the said Jake Blue, the murder aforesaid, in manner and form aforesaid, to do and commit. So the jurors aforesaid, upon their oaths aforesaid, do say that the said Jake Blue, Israel Green, Abe Dixon, Will Murphy, Dave Mitchell, Gilbert George, and Boykin Brown, at the time aforesaid, and in the county, circuit, and state aforesaid, did commit the crime of murder in the first degree, contrary,' etc.

I. It is insisted that the court erred in overruling defendant's challenge of a proposed juror for cause. It is unnecessary for us to consider whether this ruling was or was not erroneous, because the record shows that, when his challenge for cause was disallowed, the defendant peremptorily challenged the proposed juror; and it does not show that defendant objected to any other juror tendered him, or that his peremptory challenges were exhausted at the time the jury were sworn. In 1 Thomp. Trials, § 115, the rule is stated to be that if the court erroneously overrules a challenge for cause, and thereafter the challenging party excludes the obnoxious juror by a peremptory challenge, he cannot assign the ruling of the court for error, unless it appear that, before the jury was sworn, his quiver of peremptory challenges was exhausted; and it seems that some courts go even further, and hold in such cases that it must appear, not only that the peremptory challenges were exhausted, but that some objectionable person took his place upon the jury, who otherwise would have been excluded by a peremptory challenge. It is unnecessary for us to determine at this time whether the rule goes to the extent of requiring a showing that some objectionable person served upon the jury, who might have been excluded by a peremptory challenge; but we are entirely satisfied that a defendant suffers no injury in such a case, unless it is made to appear that his peremptory challenges were exhausted before the jury were sworn. Montague v. State, 17 Fla. 662; Andrews v. State, 21 Fla. 598 (text, 605); Denham v. State, 22 Fla. 664.

II. The court drew from the jury box 50 names as a special venire from which to supply deficiencies in the regular panel in selecting a jury to try this case. When the regular panel was exhausted, the name of J. S. Green, being first on the special venire, was called. This proposed juror stated that he was a member of the grand jury impaneled at the fall term of the court; that he knew of no other J. S. Green in the county; that there was no other J. S. Green in the county. The defendant thereupon moved the court to quash the special venire, upon the ground that it was improperly and illegally drawn, 'because there was only one J. S. Green in the county, and that two J. S. Greens were drawn from the jury box.' The overruling of this motion is assigned as error. Section 3, c. 4122, Acts 1893, requires the board of county commissioners of the several counties, at a meeting to be held the first week in January of each year, or as soon thereafter as practicable, to select from the list of male persons qualified to serve as jurors, and make out a list of a certain number of persons as therein provided, properly qualified to serve as jurors, with a proviso that, if any person so selected shall be ascertained to be disqualified or incompetent to serve as a juror, the same shall not affect the legality of such list,...