Shepherd v. State
| Decision Date | 11 October 1895 |
| Citation | 36 Fla. 374,18 So. 773 |
| Parties | SHEPHERD v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Orange county; John D. Broome, Judge.
John D Shepherd was convicted of murder and brings error. Affirmed.
Syllabus by the Court
1. A rigid strictness is exacted in pleas in abatement setting up mere irregularities in the selection of jurors. No ambiguity or uncertainty should exist therein, and they should be framed with the greatest accuracy and precision, and must be certain to every intent.
2. Chapter 4122, Laws approved June 2, 1893, relative to the impaneling of juries, does not repeal sections 1157 and 2803 of the Revised Statutes.
3. Applications for changes of venue are addressed to the sound discretion of the trial court, and the refusal of such applications will not be held erroneous unless it appears from the facts presented that the court acted unfairly, and committed a palpable abuse of sound discretion.
4. Under the provisions of section 2 of chapter 3431, Act March 10, 1883 (section 1092, Rev. St), only such charges as were actually given by the court, and that were deemed erroneous can be made the subjects of exception through the medium of embodiment in a motion for new trial. Exceptions to rulings of the court 'refusing to give requested instructions' cannot be taken or reserved by embodying such refused instructions in a motion for new trial, but such exceptions must be taken and reserved at the time of the court's refusal of the request to give them.
5. Rulings of the court at the trial, upon the admission or rejection of evidence, that are assigned as error to the appellate court, cannot be considered, when no exceptions thereto were taken or reserved.
J. L. Bryan, L. D. Browne, and A. F. Odlin, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error, at the fall term, 1894, of the circuit court of Orange county, was indicted, tried, and convicted for the crime of murder in the first degree, and sentenced to death, from which he takes writ of error here.
There are 27 assignments of error. Commencing with the fifth assignment, we will discuss them in the order in which they are stated; reserving the first, second, third, and fourth assignments to be considered together.
The fifth assignment is that 'the court erred in overruling the motion of the defendant, prior to his arraignment, that the indictment be quashed.' We find no such motion in the record, but in its stead we find that the defendant, before arraignment, interposed a special plea in abatement, that sets up, in substance, that the grand jury that found the indictment was not a legal grand jury, in that such jury was not drawn from the box containing the list of persons selected by the board of county commissioners to serve as jurors in said county; and because such jury was not drawn or selected as required by law; and because said jury was not taken from the box containing the names of 30 persons as required by law; and because such jury was not summoned 15 days before the sitting of the pending term of said circuit court; and because the circuit judge has no power to order a grand jury, as such, by himself; and because the circuit judge, in a county where there is a criminal court of record as Orange county has, has no power to summon a grand jury pending the term of court then being held; and because there is no authority of law to summon a grand jury from the bystanders, or from the county at large; and because, in the summoning and impaneling of the grand jury that found said indictment, there were not 30 persons summoned to serve as jurors, and 18 thereof drawn from the list of 30; and because the names of 30 persons to serve as jurors were not drawn 15 days before the sitting of said term of court at which such grand jury was impaneled; and because no venire for grand jurors was issued to the sheriff 15 days before the sitting of said term at which said indictment was found; and because no advertisement of the drawing of the grand jurors was publicly made in the courthouse of said county 10 days previous to the drawing thereof, by written notice posted at three public places in said county; and because the sheriff did not proclaim the meeting to the clerk of the circuit court and county judge, or, in his absence, a justice of the peace, and the sheriff, or, in his absence, a deputy sheriff, and the purpose of said meeting to draw such grand jury at the door of the courthouse in said county, just prior to the drawing of such jurors; and because the said grand jurors that found said indictment were selected by the sheriff of Orange county, and were summoned of his own volition and by his own selection, in violation of law, the said sheriff being without authority of law to select the number of the grand jury; and because the names of the grand jury so illegally summoned were not drawn by the judge of the circuit court, in open court, from the box containing the names of the persons selected by the board of county commissioners to serve as jurors for the year 1894, as required by the laws of the state of Florida. This plea was demurred to by the state, and the court, upon argument, sustained the demurrer. Treating this ruling as being the one intended to be assigned by the fifth assignment of error, we find no error in it. A rigid strictness is exacted in pleas in abatement setting up mere irregularities in the selection of jurors. No ambiguity or uncertainty should exist therein, and they should be framed with the greatest accuracy and precision, and must be certain to every extent. Reeves v. State, 29 Fla. 527, 10 So. 901; Woodward v. State, 33 Fla. 508, 15 So. 252. The contention of the plea here, in substance, is that the grand jury that returned this verdict was not selected and drawn according to the provisions of the law, as contained in chapter 4122, Laws approved June 2, 1893. This act expressly repeals chapter 4015, approved June 8, 1891, but repeals no other provision of law that is not inconsistent with its provisions. At the time of its enactment, sections 1157 and 2803 of the Revised Statutes were in force, and there is nothing in their provisions that is at all inconsistent with the provisions of the act of 1893; and they were not repealed by the latter act, but were in full force at the time of the impaneling of the grand jury that found this indictment. Jenkins v. State, 35 Fla. 737, 18 So. 182. Those sections of the Revised Statutes, when considered together, provide, in substance, that when, for any cause, no jurors (grand or petit) have been drawn or summoned as provided by law, the court shall issue a special venire, directed to the sheriff, commanding him to summon a sufficient number from the bystanders, or from the county at large, to complete the panel. Admitting everything set up by the plea in abatement to be true, it sets up nothing that can overthrow the validity of the grand jury that found the indictment. For aught that is disclosed by the plea, a grand jury may have been drawn and summoned in accordance with the provisions of the act of 1893, as contended for by the plea, and, because of sickness of the jurors so drawn and summoned, they may not have been unable to attend, in which event the draft from the bystanders, or body of the county, became proper, under the provisions of sections 1158 [18 So. 775] and 2803 of the Revised Statutes. The sustentation of the state's demurrer to the defendant's plea in abatement was proper.
The sixth assignment of error is the denial by the court of the defendant's motion for a change of venue. This motion was predicated upon, and supported only by, an affidavit made by the attorney for the defendant, in which it is alleged that at the fall term, 1893, of the circuit court for Orange county, one George A. Walker was tried and acquitted of the charge of murder of one Lewis Marat; that after his acquittal he was rearrested and lodged in jail, and that subsequently two attempts were made by mobs in the town of Orlando to enter the jail and lynch him; that said mobs were composed of divers persons from various parts of Orange county; and that subsequently mass meetings were held at two points in said county, at which resolutions were passed denouncing his acquittal of said charge of murder, and assailing in denunciatory language the judge who presided at said trial the jury that acquitted him, and the counsel who defended him (the affidavit sets out at length the resolutions passed at these meetings, which are unnecessary to be reproduced here); that 'said resolutions were published in an Orange county paper, and circulated throughout the county, and engendered such a state of feeling in the minds of the citizens of Orange county with regard to homicidal crimes that affiant verily believes that it will be impossible to impanel a jury of twelve men who will be able to approach this case with minds perfectly free from the influence and sentiment that were so engendered as aforesaid, or will not in some degree be swayed by the intense public and general feeling of prejudice against persons charged with homicide, and that such jury, if impaneled in said county, will be unable to divest their minds of the knowledge that public sentiment was aroused and publicly expressed against a former jury who rendered a verdict of acquittal in the above-mentioned case of ...
To continue reading
Request your trial
-
Keigans v. State
...by the record proper--i. e., the praecipe, process, pleadings, the judgment, and the ordinary record entries.' Also see Shepherd v. State, 36 Fla. 374, 18 So. 773, which I copy the fourth headnote. 'Under the provisions of section 2, c. 3431, p. 54, Acts 1883 (section 1092, Rev. St. 1892), ......
-
Pittman v. State
... ... already given by the court. We fail to find any exception ... noted to the refusal to give special charge No. 5, which ... forms the basis for the thirty-second assignment. Therefore ... we cannot consider it. See English v. State, 31 Fla ... 340, 12 So. 689; Shepherd v. State, 36 Fla. 374, 18 ... So. 773; Parnell v. State, 47 Fla. 90, 36 So. 165 ... This ... brings us to the last assignment, ... [41 So. 395] ... which is the [51 Fla. 123] thirty-third, and is based upon ... the overruling of the defendant's motion for a new trial ... ...
-
Maloy v. State
... ... the state to offer testimony showing that the general ... reputation of the defendant for truth and veracity' ... cannot be considered, since no exception was taken to the ... ruling of the court overruling an objection to such ... testimony. Shepherd v. State, 36 Fla. 374, 18 So ... 773; Sylvester v. State, 46 Fla. 166, 35 So. 142; ... Caldwell v. State (Fla.) 39 So. 188. A defendant ... taking the stand as a witness may as a witness be impeached ... as any other witness. 2 Wigmore on Evidence, § 890; ... Abbott's Trial Brief. Criminal ... ...
-
Ammons v. State
... ... See Metzger v. State, supra; ... Griffin v. State, 48 Fla. 42, 37 So. 209 ... Exception ... to refusal to charge must be taken at the time of such ... refusal. It cannot be taken to the ruling on a motion for new ... trial based on such refusal. See Shepherd v. State, ... 36 Fla. 374, 18 So. 773; Lester v. State, 37 Fla ... 382, 20 So. 232; Thomas v. State, 49 Fla. [88 Fla ... 456] 123, 38 So. 516; Clark v. State, 59 Fla. 9, 52 ... So. 518; Mathis v. State, 70 Fla. 194, 69 So. 697 ... In view ... of the gravity of this case, that a ... ...