Lindsay v. State
| Decision Date | 02 June 1915 |
| Citation | 69 Fla. 641,68 So. 932 |
| Parties | LINDSAY v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Santa Rosa County; J. Emmet Wolfe, Judge.
A. D Lindsay was convicted of being a common liquor dealer, and brings error. Affirmed.
See also, 67 So. 1021.
Syllabus by the Court
The fact that a sheriff is a witness for the state in a criminal prosecution does not disqualify him, because of prejudice against the defendant, from executing an order of the court to summon from among the bystanders a sufficient number of qualified jurors to complete the panel for the trial of the cause. The presumption exists that under such circumstances the sheriff legally discharged his duty, and that he did not discriminate against the defendant by selecting men to serve as jurors who were prejudiced against the defendant.
Recitals of facts in a motion are not evidence on appeal of the truth of such facts, when the motion is denied by the trial court.
Where in the trial of one charged with crime, the sheriff of the county is a material witness for the state, and the court directs the sheriff to summon from among the bystanders persons qualified as jurors to complete the panel for the trial of the cause, and the defendant moves the court to issue a special venire for jurors whose names shall be drawn from the jury box to complete the panel for the trial of the case, upon the ground that the sheriff would not select from the bystanders fair and impartial jurors to try the cause and the motion was denied by the court, and the sheriff executed said order by summoning persons from the bystanders who served as jurors, and the record does not disclose that the persons summoned by the sheriff from the bystanders, and who served as jurors, were disqualified as jurors to serve in said cause, nor that the sheriff unlawfully discriminated against the defendant in summoning the bystanders to serve as jurors, held, that no error was made to appear.
Where the court improperly interposes an observation as to the propriety of a question propounded by counsel to a witness on cross-examination, but the counsel subsequently to the court's remark pursues the subject of the cross-examination without objection, the error, if any, is harmless.
It is no defense on the part of one charged with crime to show merely that another person possessed the means or opportunity to commit the offense.
COUNSEL H. S. Laird, of Milton, for plaintiff in error.
T. F. West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
The plaintiff in error, A. D. Lindsay, was indicted at the Spring term of the circuit court, 1914, for Santa Rosa county, for the crime of being a common liquor dealer, and convicted.
The bill of exceptions shows that the jury not being complete, and the regular panel of jurors being exhausted, and the defendant having 'exhausted his challenges,' the court ordered the sheriff to complete the 'panel of said jury by calling or summoning bystanders instanter to serve as jurors on said jury.' The defendant, plaintiff in error in this court, thereupon, 'in person and by his attorney, requested and moved the said judge verbally to have a sufficient special venire to complete the panel drawn from the jury box.' The bill of exceptions recites that the 'defendant in person and by his attorney at said time stated to the said judge, as grounds of motion, that on account of his prejudice against the said defendant the said sheriff would not select from the bystanders fair and impartial jurors to try the said cause.' The judge denied the motion, to which ruling the defendant excepted. Two bystanders were then summoned by the sheriff. The bill then recites that the said 'A. D. Lindsay was then and there compelled to accept as jurors in said cause, his peremptory challenges being theretofore exhausted,' the two persons summoned by the sheriff from the bystanders. This transaction is made the basis of the first assignment of error. There is nothing in the record to show that the sheriff was prejudiced against the defendant save the statement of that fact in the defendant's motion, nor that the sheriff had any interest whatever in the trial, except that he was called as a witness for the state and that his name appeared upon the back of the indictment as such witness. There is nothing to show that the two bystanders who were called were disqualified as jurors to serve in the case, nor that the defendant challenged them for cause.
It was proper for the court, in the exercise of its discretion, to direct the sheriff to summon from the bystanders a sufficient number of qualified jurors to complete the panel for the trial of the cause. Colson v. State, 51 Fla. 19, 40 So. 183; section 1582, Gen. Statutes of Florida.
The presumption exists that the officer legally discharged his duty, and that he did not discriminate against the defendant by selecting men from the bystanders to serve as jurors who, for any reason known to the sheriff, were prejudiced against the defendant. See Montgomery v. State, 55 Fla. 97, 45 So. 879. It was incumbent upon the defendant to show that the sheriff's action in summoning the two bystanders was illegal because of his knowledge of the prejudice of the two bystanders against the defendant. This court, in the case of McRae v. State, 62 Fla. 74, 57 So. 348, said:
See Penton v. State, 64 Fla. 411, 60 So. 343.
There was no effort whatever on the part of the defendant to show that the sheriff was disqualified by reason of his prejudice against the defendant to summon the two persons from the bystanders to serve as jurors, save the statement of that fact in the defendant's motion, but a statement of fact in a motion is not evidence of the existence of such fact where the motion was denied by the lower court. See Cato v. State, 9 Fla. 163; Dukes v. State, 14 Fla. 499; Hayman v Weil, 53 Fla. 127, 44 So. 176; Oliver v. State, 54 Fla. 93, 44 So. 712; Smith v. State, 57 Fla. 24, 48 So. 744. From aught that appears in the record the defendant was tried by an impartial jury. His rights in this regard seemed to have been secured to him. Counsel for plaintiff in error direct our attention to the testimony of the sheriff and other witnesses to show the interest of the former in the trial. We do not discover anything in the testimony of the sheriff or the other witnesses to establish prejudice on the part of the sheriff against the defendant nor that the sheriff acted corruptly nor was unduly interested in the case, and, as no...
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