Oliver v. State

• Decision Date: 29 September 1896
• Citation: 20 So. 803,38 Fla. 46
• Parties: OLIVER v. STATE.
• Court: Florida Supreme Court

20 So. 803

38 Fla. 46

OLIVER v. STATE.

Florida Supreme Court

September 29, 1896

Error to circuit court, Wakulla county; John W. Malone, Judge.

James L. Oliver was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. When the record proper shows by minute entry that the grand jury came into open court, and returned an indictment for murder against the accused, and there follows in the record an indictment for murder in proper form, signed by the state attorney, indorsed 'A true bill,' and signed by the foreman of the grand jury, and marked filed in open court by the clerk, sufficient record evidence exists of the finding and presentment in open court of a proper indictment against the accused

2. The presumption is in favor of the regularity and correctness of the action of the circuit court as to matters in pais, and in the absence of sufficient showing to the contrary, this presumption must prevail; and when the record recites in a capital case that upon the return day of a venire a jury of 12 men came, who were duly elected, tried, and sworn (giving the form of the oath prescribed by statute), the presumption is, in the absence of any showing to the contrary, that the jurors were properly selected or drawn, and summoned into court.

3. The testimony showed that the accused shot deceased twice with a pistol, and instantly, in rapid succession, discharged two loads at a son of the deceased, standing near him, and again shot the father a third time. It was competent for the son in testifying for the prosecution, to state that the accused 'shot my father twice, and shot me twice.' It was all one and the same transaction, and admissible under the rule as being part of the res gestae.

4. On a charge of murder it is not error for the trial judge to refuse to give to the jury, at the instance of the accused, a charge that, before they can find him guilty, the evidence must exclude every other supposition but that the defendant was guilty of making a deadly assault upon the deceased, with a premeditated design and malice aforethought to effect his death. Such a proposition would have entitled the accused to a full acquittal if the evidence did not show the killing to have been done with a premeditated design to effect the death of the deceased, although it might have sustained some lesser degree of crime charged in the indictment. It was proper for the court, on the evidence in the case, to refuse to restrict the issue to such limits.

5. Where instructions containing several propositions of law are requested as a whole, it is not error to refuse to give all if they contain a single erroneous proposition of law.

COUNSEL

Nat R. Walker and R. C. Long, for plaintiff in error.

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

OPINION

MABRY C.J.

The plaintiff in error was indicted at the fall term, A. D. 1895, of the circuit court for Wakulla county, for the murder of H. S. Linton, and upon trial, at the spring term, 1896, of the court, was convicted of murder in the first degree, with a recommendation of mercy. A motion for a new trial was overruled, and defendant sentenced to the penitentiary for life.

Errors are assigned on the original record filed here: That the minutes of the trial court do not show that the grand jury returned any indictment into court against plaintiff in error, and that there is no record evidence of a true bill, signed by a foreman of the grand jury, charging him with the crime of murder. Subsequent to the filing of the record and assignment of errors, a diminution of the record was suggested; and, in obedience to a certiorari, the clerk has certified an additional record in the case. In the complete record as now before the court, we find not only an indictment in proper form, signed by the state attorney, indorsed 'A true bill,' and signed by the foreman of the grand jury, and marked filed in open court by the clerk, but a minute entry that the grand jury came into open court, and returned an indictment for murder against the plaintiff in error. The form of the entry is as follows, viz.: 'The grand jury then came into open court, and rendered the following indictment, to wit: 'State of Florida vs. James L. Oliver. Murder. A true Bill. S. Roddenberry, Foreman.”

Such a record entry, followed by a proper indictment, signed and indorsed as directed by the statute, affords sufficient record evidence of the finding and return into open court of an indictment against an accused for a felony. Collins v. State, 13 Fla. 651; Johnson v. State, 24 Fla. 162, 4 So. 535.

It furthermore appears that the accused was arraigned, pleaded not guilty, and went to trial, without making any objection at any time in the trial court that there was no record evidence of the presentation of the indictment in open court by the grand jury. Whether the accused can be heard for the first time in this court to make such objections, it is not necessary to say. Frances v. State, 6 Fla. 306; Gallaher v. State, 17 Fla. 370; Bass v. State, Id. 685.

It is further assigned as error that the record does not show that a special venire for petit jurors to try the accused was executed, pursuant to the order of the court, nor whether the petit jurors who rendered the verdict against him were ever drawn from any list of the regular or special venire. The minute entry found in the transcript is as follows, viz 'It appearing to the court that a sufficient number of the jurors, of those drawn and summoned, cannot be obtained for the trial of this cause, now, on motion of the state attorney, the defendant being present, the court caused to be drawn from the box, to be summoned, fifty qualified jurors, to complete the panel for the trial of said cause, and directed the clerk to issue a special venire for said jurors, returnable on next Wednesday morning, at 8 o'clock.' On the return day of the venire, the record recites that, after the accused was arraigned and pleaded not guilty, a jury of 12 men came, who were duly elected, tried, and sworn to try the issue, and further setting forth the form of the oath required by statute in such cases. No exception was taken in the circuit court to the drawing or impaneling of the jury. There is no merit in this objection, made here for the first time. The presumption is in favor of the regularity and correctness of the action of the circuit court as to matters in pais, and, in the absence of any sufficient showing to the contrary, this presumption must prevail. In pleas in abatement filed in the trial court, setting up defects or irregularities in the drawing and impaneling of juries, the...