Lambright v. State
| Decision Date | 01 June 1894 |
| Citation | 34 Fla. 564 |
| Court | Florida Supreme Court |
| Parties | JENKINS LAMBRIGHT AND ALBERT STEVENS, PLAINTIFFS IN ERROR, v. THE STATE OF FLORIDA, DEFENDANT IN ERROR. |
1. It is not a proper question to ask a venireman if he would find a man guilty on circumstantial evidence.
2. After a regular panel had been exhausted in the organization of a jury, the court proceeded with a special venire that had been summoned, and thereupon the accused objected to proceeding with the special venire, on the ground that a full regular panel of twelve persons had not been tendered. It appeared that the regular panel did not consist of twelve persons, but the cause of the deficiency in number was not shown, and no objection was made to the panel: Held, That it was not error for the court to proceed with the special venire after the perusal of the regular panel.
3. The recitals in a motion overruled do not of themselves afford evidence that they are true.
4. It is competent for a court to issue a special venire for additional jurors in anticipation of the exhaustion of a regular panel.
5. The provision in the Revised Statutes (sec. 1132) that no person shall be drawn to serve on a petit jury more than once during the same calendar year, does not create a disqualification, but simply provides a personal privilege to an exemption from jury duty for more than one term during the same calendar year.
6. A venireman had read in the papers all about the trial of S. for the murder of G., and had formed, and still entertained, an opinion as to his guilt or innocence, but knew nothing about the case against the accused, who were being tried for the murder of G., and the opinion which had been formed in reference to the guilt or innocence of S. would have nothing to do with the case against the accused: Held, That the venireman was a competent juror.
7. The trial court has authority under the statute (R. S. Sec, 1355) to authorize counsel to assist the State attorney, when the business of the State renders it necessary.
8. The statute (sec. 1093 R. S.) providing for the discharge of a jury by the court when they can not agree, confers upon jurors the legal right to be discharged from the consideration of a cause when, after due and thorough deliberation, they come into court for the second time, after being charged or re-charged, and avow their inability to agree upon a verdict, without requesting further explanation of the law.
9. The court must decide in the first instance whether the evidence of the corpus delicti is prima facie sufficient to permit confessions of the accused to go to the jury, and when the evidence of the corpus delicti has been admitted by the court, the jury must determine its sufficiency to establish the fact for which it was admitted, as any other fact before them.
10. The evidence of the corpus delicti held, in the present case, sufficient to admit confessions on the part of the accused.
11. It is not competent for a party who has received a mortal wound to state who inflicted the wound, unless the statement formed a part of the res gestae, or is admissible as a dying declaration.
12. All declarations or exclamations uttered by the parties to a transaction, and which are contemporaneous with and accompany it, and are calculated to throw light upon the motives and intention of the parties to it, are clearly admissible as parts of the res gestae. A more liberal statement of the rule as announced by many recent decisions is, that not only such decla rations as accompany the transaction are admissible as parts of the res gestae, but also such as are made under such circumstances as will raise a reasonable presumption that they are the spontaneous utterance of thoughts created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they were the result of premeditation or design.
13. Under the application of the rule above announced, in either form, to the facts of this case, held, that the statements offered in evidence as part of the res gestae, were not admissible.
14. The testimony in this case held sufficient to sustain the verdict of the jury.
Writ of error to the Circuit Court for Marion county.
The facts of the case are stated in the opinion of the court.
W. K. Zewadski and Hugh E. Miller, for Plaintiffs in Error.
William B. Lamar, Attorney-General, for the State.
MABRY J.:
Plaintiffs in error were indicted for the murder of George Gowen, and upon trial were convicted of murder in the first degree with a recommendation of mercy to the court. The case is here on writ of error to the judgment of the court imposing the penalty of the law upon the accused. Many exceptions were taken during the trial of the case, and numerous grounds were assigned for a new trial in a motion for that purpose which was overruled by the court. It is the duty of this court to consider all assignments of error properly made and argued here, but under a well-estab- lished rule assignments "of error though properly made and not argued are to be considered as abandoned. The assignments of error argued by counsel for plaintiffs in error will be considered in this opinion, but those not presented will not be discussed.
It is insisted that the court erred in refusing to permit counsel for the accused to ask a venireman by the name of Martin whether he would find the defendants guilty on circumstantial evidence. The bill of exceptions shows that the juror named was asked if he would find a man guilty on circumstantial evidence, and the court ruled that it was not a proper question. The record shows that this juror was challenged by the defendants and did not sit in the trial of the case, nor does it appear that the defendants had exhausted their challenges when the panel was completed. On this record it does not appear that any harm was done the accused by reason of the ruling of the court, or that they were not tried by a jury acceptable to them. Furthermore we do not think that the question propounded to the juror was proper. Section 2850 Revised Statutes provides that "no person whose opinions are such as to preclude him from fining any defendant guilty of an offense punishable with death shall be allowed to serve as a juror on the trial of any capital case." If the purpose of the question was to disqualify the juror under this section, it is apparent that it was not properly framed to elicit the necessary facts to disqualify.
After the regular panel for the week had been exhausted in organizing the jury the court proceeded with a special venire that had been summoned, and thereupon the defendants objected to proceeding with the special venire on the ground that a full regular panel of twelve jurors had not been tendered. The court overruled the objection and defendants excepted. From the statement in the bill of exceptions it appears that the regular panel which was first taken up and exhausted did not contain twelve names, but there is nothing to indicate why the panel was not complete. The objection of the defendants came after this panel was exhausted, and was on the ground that they were entitled to a full regular panel of twelve persons. The act of 1893 (Chapter 4122, sec. 5) provides for the drawing and summoning of thirty persons to serve as grand and petit jurors for a term of court, and on the first day of the term it is made the duty of the judge "to place the names of the thirty persons so summoned, or so many of them as may appear in response to the summons, in a box, and draw therefrom the names of eighteen persons, who shall serve as grand jurors for the term, and the persons whose names remain in the box shall serve as petit jurors for the first week of the term." It is to be presumed, nothing to the contrary having been shown, that the absence of a full panel of petit jurors for the week was attributable to some good cause. If any of the thirty persons selected under the statute to serve as grand and petit jurors for the first week, or the twelve selected as a petit jury for any subsequent week, were absent and not served, or if any served were, for any valid cause, excused from jury service, the panel of the petit jurors would not consist of twelve persons. While the act referred to says nothing about supplying a deficiency that may exist in a jury list, it does provide that the persons whose names remain in the box after drawing the grand jury list shall serve as petit jurors for the first week of the term. Such a panel, though not composed of twelve names, would to the extent of the persons selected be a proper jury list under the statute. We do not understand that the objection made goes to the extent of questioning the legality of the regular panel because it was not full, but it is claimed that the court should have completed the panel before tendering it to the defendants. It does not appear that defendants ever insisted on a full panel of twelve persons before proceeding with it; but, on the contrary, it does appear that the panel was exhausted without any objection on the part of the accused that it was not full. If the defendants had the right in the first place to demand that the panel for the week be supplied with other names until there were twelve persons on the panel for the week, a point not determined, they waived it by proceeding without objection until the list was exhausted. No attack was made "on the regular panel, but counsel for the accused objected to proceeding further in the organization of the jury after the regular panel had been exhausted because twelve names were not on it.
Before proceeding with the special venire a motion was made to quash it on the grounds that it was issued before the regular panel was exhausted, and because there were on the special venire names of persons who had served as jurors at the same term of the court. It does not appear from the record whether the special venire was issued before or after the regular panel was exhausted. A motion...
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