Morey v. State
| Decision Date | 06 July 1916 |
| Citation | 72 Fla. 45,72 So. 490 |
| Parties | MOREY v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Hernando County; W. S. Bullock, Judge.
Ed. M Morey was convicted of manslaughter, and brings error. Reversed.
Syllabus by the Court
Pleas in abatement are required to possess the highest degree of certainty in their averments, and all intendments are taken against the pleader.
A plea in abatement to an indictment, upon the ground that the clerk of the circuit court failed to correctly record the list of persons selected by the county commissioners to serve as jurors, is defective in that it does not exclude the idea that the names of the persons composing the jury which found the indictment were drawn from the jury box prepared as directed by section 1574 of the General Statutes of 1906.
The failure of the clerk of the court to correctly record the list of persons selected by the county commissioners to serve as jurors cannot be harmful to one indicted by a grand jury composed of persons whose names appeared upon such list, but whose names were properly placed in the jury box and drawn therefrom, in accordance with the requirements of the statute to serve as jurors.
Objections to evidence upon the ground that it is irrelevant and immaterial are so general in character as to be vague and nugatory and without weight before an appellate court, unless it appears that the evidence objected to is palpably prejudicial, improper, and inadmissible for any purpose.
Where a witness in reply to a question makes a statement which is objectionable as violating the rules of evidence, the proper course is to move that the statement be stricken and the jury directed not to consider it, specifying particularly the ground of objection.
In the trial of an indictment for murder where the defense is self-defense, evidence on the part of the state that the deceased suffered from a physical infirmity impairing his strength and vigor is admissible, where it is shown that the defendant knew of such infirmities.
Where a question propounded to a witness does not itself indicate the relevancy of the answer, in order to have the court's ruling upon such question reviewed on appeal, the person seeking to introduce the evidence should make a proffer of what he proposes to prove, so that the trial and appellate court may determine whether the proposed evidence is naterial. If the party complaining fails to do that, he fails to make the alleged error to appear.
Where the state in a criminal prosecution offers evidence of inculpatory statements made by the defendant, the latter has a right to have placed before the jury the entire conversation or all the statements made by the defendant at the same time relating to the same subject-matter, whether such other statements or the remainder of such conversation is exculpatory in character or not.
Testimony of a witness which is immaterial to the issue, but prejudicial in character to the defendant, should be stricken out upon motion.
Upon the trial of an indictment for murder, instructions given by the coroner to the jury of inquest, concerning the importance of certain facts as evidence, are not admissible.
Upon the trial of an indictment charging the defendant with the commission of a capital offense, it is important that the defendant should be present at every stage of the trial including the argument of counsel.
COUNSEL Davant & Davant, of Brooksville, for plaintiff in error.
T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
The plaintiff in error, hereafter referred to as the defendant was indicted by the grand jury of Hernando county for the murder of Robert Whitfield in May, 1915, and was brought to trial in the circuit court of that county in November following, when he was convicted of manslaughter and sentenced to imprisonment in the state prison at hard labor for a period of 10 years. To that judgment, the defendant took a writ of error.
The defendant interposed two pleas in abatement to the indictment, which, in substance, aver:
First. That the county commissioners in January, 1915, prepared a list of 308 persons to serve as jurors during the year 1915, that the list contained the names of W. E. Dees, J. M. Smith, and Joe McKinney, but in the record of the list those names were omitted. That in such record the name of J. M. Dees appears, but no such name is among the names on the list as prepared by the county commissioners. That the grand jury which found the indictment was composed of men whose names were drawn from the list, and Joe McKinney, whose name appeared on the list but did not appear in the record of the list, was one of the grand jurors who returned the indictment.
Second. On information and belief it is averred that the circuit judge did not at the spring term of the court draw a list of persons, to serve as jurors at the fall terms of the court, from the jury box, but the clerk attempted to do so; and there was not posted at three public places in the county 10 days previous a notice of the time and place of drawing the jury as required by law. The pleas were verified by the oath of the defendant. The state attorney demurred, and the court sustained the demurrer by an order in the following language:
'The above motion was argued, and upon consideration thereof it is ordered that the said motion be denied.'
This ruling of the court constitutes the basis of the first assignment of error.
It appears from the averments of the first plea that the defendant's objection to the indictment rests upon the failure of the clerk to correctly record the list of persons qualified to serve as jurors as selected and prepared by the county commissioners. From anything appearing to the contrary in that plea, the names of the persons who served as grand jurors at the fall term were drawn from the jury box in conformity with the statutory requirements.
Pleas in abatement are required to possess the highest degree of certainty in their averments, and of course all intendments are taken against the pleader. Cannon v. State, 62 Fla. 20, 57 So. 240; Young v. State, 63 Fla. [72 Fla. 49] 55, 58 So. 188; Keech v. State, 15 Fla. 591. Section 1574, General Statutes of 1906, same section Florida Compiled Laws of 1914, requires the clerk of the circuit court in the presence of the sheriff, upon receiving the list of jurors, to write the names of the persons contained therein on separate pieces of paper, and fold or roll such pieces of paper so that the names written thereon shall not be visible, and deposit them in the jury box, from which box the names of persons to serve on the grand or petit juries are drawn. If these names were correctly taken from the list and written upon separate pieces of paper and the same folded and deposited in the box as the law required, the defendant could not have been injured in the enjoyment of his rights, if the clerk did thereafter incorrectly record the list in the minutes of the county commissioners, nor could the defendant have suffered any wrong if the list had been previously incorrectly recorded. In the case of Keech v. State, supra, the court said:
See Cochran v. State, 65 Fla. 91, 61 So. 187.
The second plea is also bad because it does not aver that the names of the persons constituting the grand jury, which returned the indictment, were drawn from the jury box by the clerk of the court in the manner stated in the plea and without the notice required by law; but it avers merely an attempt on the clerk's part to 'draw from the box the jury' for that term of the court. The attempt of the clerk may have resulted in no selection of the jury by that method, so far as anything in the plea contained shows to the contrary. It is not clearly alleged that the indictment was found by a grand jury whose names were drawn illegally from the jury box, nor that their names were drawn from any box. The plea does not exclude the presumption that the indictment was presented by a legally constituted grand jury. Woodward v. State, 33 Fla. 508, 15 So. 252. And it is the settled rule in this state that pleas in abatement to indictments, urging defects in the drawing, selecting, and impaneling of grand juries, are required to be drawn with a very high degree of certainty to every intent, and will be construed with rigid strictness against the pleader. Kelly v. State, 44 Fla. 441, 33 So. 235; Easterlin v. State, 43 Fla. 565, 31 So. 350; Tervin v. State, 37 Fla. 396, 20 So. 551. Counsel for the defendant urges that the drawing of the names of persons to be jurors from the box by the clerk without giving the required notice is a fatal irregularity, but the answer to his argument is the plea does not make such averment with the certainty and clearness required. The first assignment of error, therefore, must fail.
During the trial a witness for the state, a son of the deceased, was permitted over the defendant's objection to testify to certain physical infirmities of the deceased from which he suffered about a year before he was killed. The witness spoke at some length about an ailment of some kind from which his father suffered in his right leg, also of an arm drawn and weakened from an accident which happened years before. There was no effort whatever to show that the defendant knew of these infirmities, nor did the testimony subsequently admitted show that the defendant knew of them. The purpose of this testimony was to show that there was not in fact such disparity between the deceased and the...
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