Kennick v. State
| Decision Date | 02 December 1958 |
| Docket Number | No. A-80,A-80 |
| Citation | 107 So.2d 59 |
| Parties | Claudia KENNICK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
J. Bobert Durden, Daytona Beach, for appellant.
Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
The appellant, Claudia Kennick, was convicted of second degree murder, from which she appeals.
After the prospective jurors had been accepted by the state and the defendant on the morning of the scheduled trial, they were informed by the court of a delay occasioned by the absence of a state witness and were excused until a time fixed in the afternoon of that day. The defendant immediately requested the court to cause the prospective jurors to be sworn to try the issues and to caution them not to discuss the case among themselves or allow anyone to discuss it with them during the interim period, which request was denied on the insistence of the prosecution that to do so would place the defendant in jeopardy, thus prejudicing the prosecution if the missing witness did not appear. The jurors separated and dispersed until the appointed time, and upon reconvening court the trial judge announced that he had decided to dismiss the prospective jurors until the following morning, but did not admonish them regarding their conduct in the interim. The defendant then requested that the jury be sworn to try the case and the request was refused. Court reconvened at the appointed time, the jury was sworn, and the trial proceeded. It does not appear that any effort was made to further examine the prospective jurors, to challenge the panel, or to show misconduct on the part of any juror.
Error is assigned to the refusal of the court to cause the prospective jurors to be sworn to try the issues and instructed in accordance with defendant's requests made prior to commencement of the trial, and in refusing to include certain of defendant's requested instructions in the general charge to the jury. Appellant's brief does not argue the assignments of error addressed to the latter proposition and the same are treated as abandoned.
It is fundamental that in the absence of a controlling statute or overriding fule of procedure the method of conducting a trial is within the reasonable discretion of the trial court. Alford v. Barnett Nat. Bank of Jacksonville, 137 Fla. 564, 188 So. 322; Bomano v. Palazzo, 83 Fla. 243, 91 So. 115; Tully v. State, 69 Fla. 662, 68 So. 943. There being no statute or rule to the contrary, and no abuse of discretion being shown, we will not disturb the discretion exercised by the trial judge in not requiring the jury to be sworn until it was determined whether the missing state witness would be able to appear.
The term 'jury' relates to the body or group that if finally sworn to try the issues in a particular case, while the term 'juror' relates to the individual members of the jury. Jeopardy does not attach to a defendant until a jury had been impaneled and sworn to try the issues. Burnes v. State, 89 Fla. 494, 104 So. 783. The ability to change the composition of a prospective jury is available until it is...
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