Jenkins v. State

• Decision Date: 10 June 1895
• Citation: 18 So. 182,35 Fla. 737
• Parties: JENKINS et al. v. STATE.
• Court: Florida Supreme Court

18 So. 182

35 Fla. 737

JENKINS et al. v. STATE.

Florida Supreme Court

June 10, 1895

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

Irving Jenkins, William A. McRae, and Marion Clinton were convicted of murder, and bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. In pleas in abatement setting up simply irregularities in the selection of jurors, the greatest accuracy and precision in pleading are required, and such pleas must be certain to every intent.

2. Chapter 4015, Acts 1891, was repealed by chapter 4122, Acts 1893, but the latter act did not repeal section 1157 of the Revised Statutes, authorizing circuit courts, whenever, for any cause, no petit jurors, or less than the whole number had not been drawn or summoned in the manner provided by law for any regular or special term of the circuit court, to issue a special venire for a sufficient number of such jurors for such term, to be summoned from the bystanders, or the body of the county at large; and a plea in abatement alleging simply that an indictment was found by a grand jury not drawn according to the act of 1893, but was summoned from the body of the county at large, is bad on demurrer.

3. By section 2813, Rev. St., as well as by public policy, a grand juror should not be permitted to state or testify in any court in what manner he or any other member of the grand jury voted on any question before them, or what opinion was expressed by any juror in relation to such question, and to this extent the secrecy of the grand-jury room is absolute but neither by statute nor public policy is the sanctity of the grand-jury room carried further than the restriction embodied in section 2813, and a member of a grand jury may be required by the court, when public justice demands it, to testify to any fact otherwise competent, and which does not violate the restriction stated. The express provision in section 2814 as to the cases in which a grand juror may be required to testify does not exclude an inquiry into other cases sanctioned by law.

4. It is made the duty of the state's attorney, when required by the grand jury, to examine witnesses in its presence, and to give it advice upon legal matters; and, whenever it is proper for a grand juror to testify as to statements of witnesses before that body, the state's attorney can likewise testify as to such matters, if within his knowledge.

5. Where a party indicted for an offense has voluntarily testified in reference thereto before a grand jury, in their investigation of such offense, prior to his being officially charged with or arrested for the same, his statements before the grand jury, so voluntarily made, though under oath, may be given in evidence, on his sul-sequent trial for said offense, for the purpose of contradicting other statements made by him in reference thereto; and where it is shown that the official conducting the examination before the grand jury instructed the witness that he need not testify unless he was willing to do so, and that he could not be compelled to criminate himself, his statements voluntarily made under such circumstances are admissible against him.

6. The statement of a witness before a grand jury, as reduced to writing by the state's attorney, but not read to or signed by the witness after being so reduced to writing, has not been invested by statute with the force of a binding record against such witness.

7. The state's attorney, conducting the exparte examination of a witness before a grand jury, reduced his testimony to writing, and, on a subsequent trial of the witness on an indictment charging him with the offense in reference to which he was examined before the grand jury, the written statement itself of the evidence before the grand jury, as reduced to writing by the state's attorney, was offered and admitted as independent evidence for the purpose of contradicting other statements of the accused put in evidence by the state in reference to the crime charged. held, that the admission of such statement of the evidence was error and that, while the state's attorney might testify of his own knowledge what the accused stated before the grand jury such written statement was not per se competent evidence of what was stated before the grand jury.

8. The only proper way to deal with hearsay evidence when offered to the jury and objected to is to exclude it from the case.

9. Proof of overt acts or declarations by one, in pursuance of a common purpose or design on the part of several to commit a crime, may be given in evidence against all of the conspirators; but such acts or declarations, to be admissible, must be such only as were done and uttered during the pendency of the criminal enterprise, and in furtherance of its objects. If they occur at a subsequent period, and are merely narrative of past occurrences, they are not admissible against any but the party making them.

10. All evidence that is material and relevant, and that tends to prove the guilt or innocence of the accused, should be submitted to the jury; and although the relevancy of any fact, when standing alone, may not be apparent, yet if, when taken in connection with any other fact, or all the other facts properly admitted, its relevancy is made to appear, it should be admitted in evidence for the consideration of the jury. This rule should not, however, in purely circumstantial cases, any more than in others, be carried to the extent of infringing upon the further rule that all evidence should be confined to the question in issue and tend to prove some essential fact involved in the issue in the case. Testimony that does not tend to prove motive, or establish some other material fact essential to the crime charged, should not be admitted, and especially when it may tend to produce an erroneous impression on the minds of the jurors, to the prejudice of the accused.

11. It is within the discretion of the court to regulate the order of the introduction of evidence, but when irrelevant testimony is offered and objected to, and it is admitted by the court, on the theory that its relevancy may be shown by subsequent evidence, if such evidence is not introduced, the irrelevant portion should be excluded by the court without further motion on the part of the party objecting.

12. In considering an objection to a portion of a charge, the entire charge to which the objection relates must be looked to, and, if the charge as an entirety is free from the objection made, it will be sufficient.

13. In a case of purely circumstantial evidence, a charge asserting that 'in a case of this kind the conclusion to which the jury are conducted is that degree of certainty that they would come to in their own grave and important concerns, and that is the degree of certainty which the law requires, and which will justify them in returning a verdict of guilty from all the facts and circumstances laid before them,' is wrong, in this, that it establishes a standard or degree of certainty upon which the jury can convict wholly insufficient to authorize a verdict of guilty in criminal cases.

14. Comments of counsel in arguing a case before a jury are controllable in the discretion of the trial court; but this discretion is subject to review, and when counsel indulge in material statements outside of the evidence, and which are likely to do the accused injury, it will be deemed an abuse of discretion when not stopped by the court, on objection made. Such objection should be made at the time of the abuse of the privilege of argument, and the action of the court overruling the objection, and the fact that exception was taken to such ruling should appear, with the objection, in the bill of exceptions.

15. Under the rule announced as to the privilege of argument of counsel, a portion of the remarks of counsel objected to and pointed out in the opinion was improper, while other portions were allowable.

16. The return of a jury, in a case involving a charge of murder, that they found the defendants guilty as charged, but recommended one of the defendants to the mercy of the court, cannot be considered by the court as a verdict of murder of any degree, or any verdict at all, and the case still remains with the jury; and the court cannot then, any more than at any other time, intimate to the jury what their verdict should be. Cases on the subject of the return of verdicts by juries referred to.

COUNSEL

E. K. Foster and Miller & Austin, for plaintiffs in error.

William B. Lamar, Atty. Gen., and Alex. St. Clair-Abrams, for the State.

OPINION

MABRY, C.J.

In December, 1891, Francis Joseph Packwood, with his sister-in-law, Miss Adelaide Bruce, and his four year old son, lived on the Hillsboro river, in Volusia county, Fla about halfway between the towns of New Smyrna and Oak Hill. Mr. Packwood's place was somewhat isolated, being immediately on the river, and about one mile east of the public road between the towns mentioned, with a road extending from the public road to the place on the river. On Thursday preceding the 12th day of December, 1891, Mr Packwood left his place to visit Orange county, and, as was his custom on remaining from home overnight, he induced a Mrs. Hatch, living a few miles distant, to stay with his family until his return. During his absence in Orange county, and on the 12th day of December, 1891, the dead bodies of Miss Bruce, the little boy, Mrs. Hatch, and her little son, who had accompanied her to the Packwood place, were found in the house, under circumstances, about which there is no dispute, indicating that they had been brutally murdered. The plaintiffs in error were convicted of murder in the first degree,--one of them (Marion Clinton) being recommended to the mercy of the court...