Mathis v. State

• Decision Date: 27 March 1893
• Citation: 12 So. 681,31 Fla. 291
• Parties: MATHIS v. STATE.
• Court: Florida Supreme Court

12 So. 681

31 Fla. 291

MATHIS v. STATE.

Florida Supreme Court

March 27, 1893

Error to circuit court, Hamilton county; John F. White, Judge.

James F. Mathis was convicted of murder in the first degree, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. The act of 1889, (chapter 3905,) entitled 'An act to provide for the revision and consolidation of the Public Statutes of this state.' did not invest the commissioners, of themselves, with power to enact any new statutory law, or to revive any statute or statutes not in force at the time of the revision. The duty of the commissioners, under this act was to revise, simplify, arrange, and consolidate the Public Statutes then in force into one body, or into the form of one act, under titles, chapters, and subdivisions, with side notes to indicate the contents of the original text, with references to show from what act each section was compiled and to the decisions of the court construing the statutes and they were also authorized and directed to report to the legislature, along with the submission of the printed copy of the revision, such contradictions, omissions, and imperfections as may appear in the original text of said acts, and the mode in which they shall have reconciled supplied, and amended the same; and they were further directed to designate such acts or parts of acts as, in their judgment, ourght to be repealed, with the reason for the same, and also recommend the passage of such new acts as may appear necessary or expedient, either in lieu of, or in addition to, any of the acts so revised and consolidated. The entire work of the commissioners was to be submitted to, and be reviewed by, the legislature, and be re-enacted by that body, if it should so determine.

2. The statutes in force in this state at the time of the revision derived their binding force from the prior action of the legislature, independent of the act of 1889, under which the revision was made, but such new matter as was submitted by the commissioners with the consolidation of the already existing statutes must derive its power, as statutory law, from the sanction of the legislature, in the form of a constitutional enactment.

3. The provision in the Revised Statutes that an accused, in a capital case, shall be entitled to only 10 peremptory challenges, is new matter contained therein, as the statute in existence at the time of the revision, in such cases, secured to him 20 such challenges, and it has not been taken away, otherwise than by the revision.

4. By the act of 1891, (chapter 4055,) the Revised Statutes mentioned therein as accompanying the same were constitutionally enacted as statute law, of a general and public nature, under the title of the 'Revised Statutes of the State of Florida,' although they were not bodily incorporated in said act.

5. The essential requirements of the constitution, that there must be a bill with an enacting clause, and a title embracing but one subject, and matter properly connected therewith, and that it must pass both branches of the legislature in the mode prescribed for the enactment of laws, and be signed by the proper officers of the legislature, held sufficiently complied with in the passage of chapter 4055, adopting the Revised Statutes.

6. Whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of the legislative body; and it will not be presumed, in any case, from the mere silence of the journals, that either house has exceeded its authority, or disregarded a constitutional requirement, in the passage of laws, except where the constitution has expressly required the journals to affirmatively show the action of the legislature.

7. The journals of the two houses of the legislature examined, and held, that all the proceedings required by the constitution to affirmatively appear upon the journals in reference to enacting laws are properly recorded in the passage of chapter 4055, Laws Fla.

8. The right to peremptorily challenge jurors appertains to the remedy or procedure under which prosecutions are conducted, and not to the essence of the offense itself. The legislature can at any time change the law in this respect, and such change will apply to prosecutions of offenses committed before, as well as those committed after, the change has been made.

9. The provision in section 32, art. 3, Const. 1885, that 'the repeal or amendment of any criminal statute shall not affect the prosecution or punishment of any crime committed before such repeal or amendment,' relates to the offense itself, or the punishment thereof, and not to the remedy or procedure which the legislature may enact for the prosecution and punishment, unless the change in the remedy should affect in some way the substantial rights of defense.

10. The right to peremptorily challenge jurors does not exist, or does not accrue to an accused, until trial; and the third section of the act adopting the revision, providing that 'the repeal of any statute by said revision shall not affect any right accrued before such repeal,' does not have the effect to save to an accused the right to 20 peremptory challenges on a prosecution for a capital offense, alleged to have been committed before the Revised Statutes became operative, but when the trial occurs thereafter.

11. After four jurors had been examined, sworn, and accepted by the state and the accused, and the regular and a special venire had been exhausted, the state objected to the last juror sworn from the special venire on the ground that he was present at the inquest held by the coroner over the body of the deceased, and heard the evidence of witnesses given there, and that this fact, shown by affidavits then in possession of the state attorney, and offered to the court, was not known when the juror was tendered and accepted. Without passing upon the objection raised by the state to the juror, and on motion of the state attorney, the judge ordered that the juror be taken from the jury box, and that his name be placed at the foot of the list of a third venire of jurors summoned, against the objection of the accused. The jury was completed from the list before reaching the juror taken from the box, and after the accused had exhausted all of his peremptory challenges. Held, that it was error for the judge, without passing upon the objections raised to the juror, to stand him aside, on the motion of the state, and proceed with the organization of the jury.

COUNSEL

B. B. Blackwell and D. B. Johnson, for plaintiff in error.

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

OPINION

MABRY J.

In February, A. D. 1892, an indictment for murder in the first degree was presented against the plaintiff in error in the circuit court for Hamilton county; and in August of that year he was convicted, on this indictment, of murder in the first degree, with a recommendation of mercy to the court. From this judgment entered against him in the circuit court the accused has obtained a writ of error, and upon the record brought here has filed the following assignment of errors, viz.: (1) The court erred in overruling defendant's challenge to the array of jurors drawn by special order of court. (2) The court erred in overruling defendant's motion for a new trial on the ground that W. J. Nelson, a juror, had changed his place of residence, and was not a qualified juror. (3) The court erred in refusing to allow defendant more than 10 peremptory challenges. (4) The court erred in withdrawing Goleman, a juror, from the jury box, and discharging him, after he was sworn, and after the panel was complete. (5) The court erred in swearing the thirteenth juror, Cheshire, without first disposing of the state's motion to discharge Goleman. (6) The court erred in overruling defendant's peremptory challenge to the juror Cheshire.

It appears from the bill of exceptions that, before commencing to impanel the jury, the judge announced to the defendant's counsel that the defense would be allowed only 10 peremptory challenges, and that counsel for the defense stated to the court that the defendant would insist on 20. It is further made to appear that after 11 jurors, besides N. J. Goleman, who had been directed by the court to leave the jury box, in charge of a bailiff, pending an examination as to his qualification, had been selected, Walter Cheshire was called from the list of talesmen, and tendered as a juror by the state to the defendant, and thereupon the defendant challenged this juror peremptorily; but the court overruled this challenge on the ground then stated that the defendant had already challenged 10 jurors, and was not entitled to challenge peremptorily any more. To this ruling the defendant excepted.

The third and sixth assignments of error may be considered together, as they involve the same point. The indictment in this case was presented before the Revised Statutes went into effect, and the trial took place thereafter. Under the statute in force prior to the adoption of the Revised Statutes, an accused on trial for a capital offense was entitled to 20 peremptory challenges, but the revision gives him only 10.

The objection here presented is that the change in reference to the number of peremptory challenges allowed an accused in a capital case, and found only in the Revised Statutes, has not been constitutionally enacted as law in this state.

It is contended by counsel for plaintiff in error that the commissioners appointed to revise the statutes had no authority to make such a radical change in the law as they have done in this instance, and that the power given them to 'revise, simplify, arrange, and consolidate' the statutes referred to in ...