Kelly v. State

• Court: Florida Supreme Court
• Writing for the Court: TAYLOR, C.J.
• Citation: Kelly v. State, 33 So. 235, 44 Fla. 441 (Fla. 1902)
• Decision Date: 25 September 1902
• Parties: KELLY v. STATE.

33 So. 235

44 Fla. 441

KELLY v. STATE.

Florida Supreme Court

September 25, 1902

Error to circuit court, Jackson county; Lucius J. Reeves, Judge.

Sam Kelly was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Pleas in abatement alleging defects in the drawing and impaneling of grand juries must be drawn with rigid strictness and certainty to every intent.

2. A plea in abatement of an indictment returned by a grand jury that attempts to allege illegality of such grand jury because of discrimination against negroes on the part of the county commissioners in the selection of the jury list from which it was drawn, that fails to allege that there were any negroes in the county at the time the list was selected from which the grand jury was drawn that found the indictment, who were possessed of all the statutory qualifications of jurors, and that fails to allege that there were any negroes in said county who were possessed of the statutory qualification of 'sound judgment,' and that fails to allege that the county commissioners knew, or had good reason to believe, at the time they selected such jury list, that there were negroes in such county possessed of the statutory qualifications of approved integrity, fair character, sound judgment, and intelligence, does not meet the requisite strictness and certainty applicable to such pleas, and is bad on demurrer.

3. The rule is that charges must be predicated upon the facts in proof, and it would be error to charge upon a hypothesized state of facts that had no foundation in the proofs.

4. If a defendant, on trial for murder, desires a special instruction as to the form of a verdict of acquittal, he should request it to be given, otherwise he cannot complain of the court's failure to so charge, as it is not generally necessary to instruct specially as to the form of a verdict of acquittal.

5. Motions in arrest of judgment form part of the record proper and, when evidenced to an appellate court only in and by a bill of exceptions, cannot be recognized or considered by such court.

COUNSEL

C. L. Wilson and J. M. Calhoun, for plaintiff in error.

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

OPINION

TAYLOR C.J.

The plaintiff in error, in November, 1901, was indicted, tried convicted, and sentenced in the circuit court of Jackson county for the crime of murder in the first degree, and on the 29th of April, A. D. 1902, sued out writ of error from this court returnable to the present June term.

To the indictment the defendant interposed a plea in abatement as follows: 'Defendant, for plea in abatement to the indictment herein against him, says that he is a negro resident of Jackson county, Florida, and the jury list of three hundred and ten names placed in the jury box for the year 1901 by the county commissioners of said county were all white men, and from said list of white men were drawn the grand jurors that found the indictment herein against him and the petit jury that is to try him at this term, and a large portion of the population of said county are negroes, and a large number of them qualified jurors, and men of integrity and intelligence, and the names of the negroes were omitted from said jury list because they were negroes; wherefore defendant says that he is not indicted or being tried by his peers, and prays the judgment of the court whether he should make further answer to said judgment.'

The state attorney demurred to this plea upon the grounds: First, that said plea set up no fact or facts that would be a bar or in abatement to the indictment herein; second, that said plea alleges no discrimination against this defendant or the colored race; third, that said plea is vague, indefinite, and uncertain, and sets up nothing in bar or in abatement of said indictment. The court below sustained this demurrer, and this ruling is assigned as error. There was no error in this ruling. It is the settled rule in this court that pleas in abatement setting up defects in the drawing and impaneling of grand juries must be drawn with rigid strictness and certainty to every intent. Reeves v. State, 29 Fla. 527, 10 So. 901; Woodward v. State, 33 Fla. 508, 15 So. 252; Jenkins v. State, 35 Fla. 737, 18 So. 182, 48 Am. St. Rep. 267; Shepherd v. State, 36 Fla. 374, 18 So. 773; Tervin v. State, 37 Fla. 396, 20 So. 551; Knight v. State, 42 Fla. 546, 28 So. 759; Easterlin v. State, 43 Fla. ----, 31 So. 350.

Section 1, c. 4122, Laws 1893, provides that grand and petit jurors shall be taken from the male persons above the age of 21 years who have resided in this state for one year and in their respective counties for six months, and who are citizens of the state of Florida. Section 3 of said act provides that 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 shall select from the list of male persons who are qualified to serve as jurors under the provisions of section 1, and make out a list of not less than 290 nor more than 310 persons properly qualified to serve as jurors, 'who, in addition to the qualifications above mentioned, shall be such persons only as they know or have good reason to believe are of approved integrity, fair character, sound judgment, and intelligence.' The act then provides that each name so selected shall be written upon a separate slip of paper, and so folded as to make the name thereon invisible, and all of these slips are placed in a box by the clerk of the circuit court, to be kept by the clerk securely locked and sealed; and from this box grand and petit jurors are drawn from time to time, as required, by the judge, clerk, and sheriff. The plea demurred to here was filed on the 27th of November, 1901. The presumption is that the county commissioners complied with the law by selecting the jury list during the first week in January of that year. The allegation of the plea is substantially that at the time it was filed a large portion of the population of the county were negroes, and that a large number of them were then qualified jurors, and men of integrity and intelligence; but whether or not there were any negroes residing in the county 10 months previously, when the county commissioners selected the jury list, is...