Reeves v. State

• Citation: 29 Fla. 527,10 So. 901
• Parties: REEVES v. STATE.
• Decision Date: 23 April 1892
• Court: United States State Supreme Court of Florida

10 So. 901

29 Fla. 527

REEVES v. STATE.

Florida Supreme Court

April 23, 1892

Error to circuit court, Wakulla county; JOHN W. MALONE, Judge.

Indictment against Frank Reeves for larceny. Verdict of guilty, and judgment thereon. Defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. A demurrer to a replication to a plea in abatement will reach the plea if defective.

2. The greatest accuracy and precision are required in pleas in abatement merely setting up irregularities in the selection or drawing of jurors, and such pleas must be free from uncertainty or ambiguity.

3. The statute (section 1, c. 3125, Laws 1879) providing a time for the boards of county commissioners to select from the list of registered voters in their respective counties a jury list of persons properly qualified to serve as jurors is directory and, should said commissioners fail to make the selection at the January meeting mentioned in the statute, it would be competent for them to do so at a subsequent meeting.

4. The provision of the statute, supra, that the boards of county commissioners shall select from the registered voters of their respective counties a list of 300 persons properly qualified to serve as jurors, who shall be such persons only as said commissioners know, or have good reason to believe are of approved integrity, fair character, sound judgment and intelligence, provided that if in any counties of this state said commissioners shall not be able to select the number required, they shall be authorized to select a less number, but said number to be the highest possible, invests such boards with authority to pass upon the integrity character, judgment, and intelligence of the persons to be selected as jurors; and, in the absence of an illegal purpose, fraud, or corruption in the selection of a less number than 300, the discretionary power of the commissioners in such matters will not be disturbed.

5. An objection that the offense charged in the indictment is vague, indefinite, and insufficient to protect the accused against a subsequent prosecution, shall be made in the shape of an attack on the indictment, and not by a motion for a new trial on the ground that the verdict is contrary to law.

6. An accused is entitled to the presumption of innocence until this presumption is overcome by testimony beyond a reasonable doubt, and also to the benefit of a reasonable doubt in his favor arising from the evidence, and to have the court to so charge the jury. It is error to refuse a request in behalf of an accused to so charge when the court has not already fully covered in its charge what is requested.

COUNSEL

Nat. R. Walker and S. C. Miller, for plaintiff in error.

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

OPINION

MABRY J.

The plaintiff in error was indicted at the November term, A. D. 1891, of the Wakulla circuit court for the larceny of a domestic animal. The averment as to the offense is that said 'Frank Reeves, late of the county of Wakulla, aforesaid, in the circuit and state aforesaid, laborer, on the 19th day of June in the year of our Lord one thousand eight hundred and ninety-one, with force and arms, at and in the county of Wakulla, aforesaid, a certain domestic animal, to wit, a hog, of the value of two dollars and fifty cents, of the goods and chattels of Ellen Epps, then and there being found, feloniously did steal, take, and carry away, against the form of the statute,' etc. The plaintiff in error, as defendant in the trial court, filed a plea in abatement. It is necessary to set out this plea, and the proceedings on it, in order that the objection sought to be raised by it may be presented.

In this plea it is alleged that said defendant should not be required to plead to the indictment because 'the board of county commissioners of said county did not meet on the first week in January, 1891, for the purpose of selecting from the list of registered voters and make out a list of persons qualified to serve as jurors for this term of the circuit court, but did meet thereafter as soon as practicable, to wit, February 22, 1891, and selected the names of two hundred and eighty-five, said list being improperly certified to and signed by the chairman of the board.'

(2) 'The defendant further asks the court that he should not be required to plead to the indictment, because that there are over six hundred registered voters, as is shown by the records of said county, in said county, and that the said county commissioners, as aforesaid, were able to select more than the number so selected to serve as jurors.'

(3) 'And defendant further asks not to be required to plead, because that the officers of this court, after the drawing of the grand and petit jurors from said list as aforesaid, which were placed in a box, the names of the registered voters, did draw therefrom the grand and petit jurors who served as such jurors at the last spring term of said court.'

(4) 'The defendant further says that by instructions of said board of county commissioners, the officers, after drawing from said box the grand and petit jurors for the last spring term of this court, that said commissioners did instruct said officers to throw the names of said persons so selected to serve as grand and petit jurors, as aforesaid, out of said box, and the said officers did obey said instructions; further, that said board of county commissioners did meet on the 6th day of July, 1891, in the clerk's office in said county, without any judicial instructions from said circuit court, and proceeded again to select from the list of registered voters qualified to serve as grand jurors, and did select, the names of two hundred and eighteen out of the number of six hundred and more registered voters of said county, and from said list, which was improperly certified to by the chairman of said board to the clerk of this court, the officers of this court did draw the grand and petit jurors now serving as such jurors for this court, who are serving as such jurors without authority of law; and that at said meeting in July, 1891, the board of commissioners were able to select more than the number of two hundred and eighteen from the registered voters of said county, who are persons of approved integrity, fair character, sound judgment, and intelligence, as is shown by the annexed affidavit from the officers of this court and citizens of this county, and filed as 'Exhibit A,' and made a part of this plea.'

The affidavit referred to in the plea is signed by the county judge, sheriff, collector of revenue, and two others. It is stated in this affidavit that the affiants had 'examined the list of names recorded by the clerk, furnished to him by the board of county commissioners at their July meeting of the year 1891, and recorded on their minutes, and from said list the names of persons who were selected to be placed in a box to be drawn as grand and petit jurors for the fall term of the circuit court,' and that said list does not, in their judgment, contain all the qualified registered voters in said county who are qualified to sit as grand and petit jurors; that the names of many persons are omitted who would be qualified jurors; and the names of 10 persons are mentioned.

The state attorney filed the following replication (omitting formal parts) to the plea: 'That, notwithstanding anything by the said Frank Reeves above in pleading alleged, this court ought not to be precluded from taking cognizance of the indictment aforesaid, because he says that the court having discharged the jurors at the spring term of said court, for the reason as is made to appear to said court, as set out in said plea of said defendant, the county commissioners had not up to the holding of said spring term caused a proper list of names to be given to the clerk, as required by law, to be placed in the jury box to be drawn from; and therefore, there being no proper jury box for said county at said spring term, the said county commissioners proceeded, as early after the first week in January as practicable, to select names to be placed in the jury box for the county of Wakulla, to wit, on the 6th day of July, 1891, the list of which said names, properly certified to and signed as required by law, was duly recorded, from which said list the clerk put names in said box, on pieces of paper, as required by law, and from which said box the names of the grand jurors and petit jurors for the present term were duly drawn, after due notice as required by law. To all of which said matters and things reference is prayed to the records of this honorable court,' etc.

There was a demurrer filed by said accused to this replication. The grounds of the demurrer are that the replication is bad, because 'the defendant's pleas do not allege that it was made to appear, as mentioned in the state attorney's replication, that the court discharged the jurors at the spring term of said court for the reason therein set forth, or for other reasons as made to appear by order of the circuit court as alleged; and, further, that the legality of the drawing of the grand and petit jurors by the county commissioners was not determined or considered by said court, as was alleged in defendant's plea.'

There was a joinder on the part of the state attorney in the demurrer to the replication, and the record shows that the court overruled the demurrer and overruled the plea, and required the accused to plead to the indictment.

There is copied into the record what purports to be copies of the minutes of the board of county commissioners in reference to the selection of jury lists in February and July, A. D. 1891 but they are not embodied in the bill of exceptions, and there is nothing to show that they or...