State v. Lewis
| Decision Date | 15 January 1943 |
| Citation | 152 Fla. 178,11 So.2d 337 |
| Parties | STATE v. LEWIS. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Escambia County; L. L Fabisinski, judge.
J. Tom Watson, Atty. Gen., and Woodrow M. Melvin, Asst. Atty. Gen for appellant.
John M Coe, of Pensacola, for appellee.
At a preliminary hearing before a justice of the peace, appellee was on June 17, 1942, bound over pending the action of the grand jury of Escambia County on a charge of rape. On July 1, 1942 the grand jury in regular session returned an indictment against him charging rape.
On July 9, 1942, he entered a plea in abatement to the indictment to which the State filed a demurrer. Eo die the defendant entered what he termed a the indictment wherein he alleged that he was a negro and was charged with the rape of a white woman, that negroes were unlawfully, arbitrarily, and systematically excluded from the grand jury which indicted him solely because of their race despite the fact that from 35 to 40 per cent of the adult male population of the country qualified for jury service were of the negro race.
The trial court sustained the demurrer to the plea in abatement but overruled it as to the 'plea in abatement and/or motion to quash'. The State then answered the latter plea wherein it set up the fact of the preliminary hearing held on the 17th of June, the result thereof, that defendant had procured counsel and both were advised that an investigation of the charge against defendant would be made by the grand jury but that notwithstanding such knowledge defendant made no effort to challenge the legality of the grand jury before it was empaneled and sworn as the law requires. The trial court held the answer of the State insufficient as a defense and granted the the indictment. The State appealed.
The only question presented is whether or not defendant forfeited his right to challenge the competency of the grand jury because he failed to do so before it was empaneled and sworn. It is not denied that it was empaneled in violation of his constitutional right.
At the outset, it appears that the parties were not certain whether the question of the grand jury's competency should have been raised by plea in abatement or by motion to quash. In our view, plea in abatement was the proper method and the 'plea in abatement and/or motion to quash' will be so treated.
Under the Criminal Procedure Act (Section 905.02, Florida Statutes, 1941) the State or the person charged may challenge the panel or an individual grand juror. To reverse the trial court's ruling as to the instant challenge, the State relies on Section 905.05, Florida Statutes of 1941, which was also a part of the Criminal Procedure Act and is as follows
It is contended that defendant was within the exception to this act and had reasonable ground to believe that the charge against him would be investigated by the grand jury as soon as convened because he had been bound over by a justice of the peace to await its action.
It is a fact that approximately twelve days elapsed between the order of the committing magistrate binding the defendant and the date the grand jury was empaneled and sworn but we are not convinced that under the facts of this case that precludes the defendant challenging its competency. We do not set aside the rule previously enunciated by this Court, that issues of this kind must be...
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Harris v. Wainwright
...impropriety in the grand jury, and immunity from prosecution. Horton v. Mayo 153 Fla. 611, 15 So.2d 327 (Fla.1943); State v. Lewis 152 Fla. 178, 11 So.2d 337 (Fla.1943); Potsdamer v. State, 17 Fla. 895 (Fla.1880); State ex rel. Hancock v. Love 143 Fla. 883, 197 So. 534 (Fla.1940); Poppell v......
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Frazier v. State
...a grand jury may be raised by plea or otherwise after the grand jurors have been empaneled and sworn. It is true that in State v. Lewis, 1943, 152 Fla. 178, 11 So.2d 337 this Court said that 'time does not run before the indictment is found', but it said further at page 339 of 11 '* * * We ......
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Porter v. State
...been practiced. Montgomery v. State, 1908, 55 Fla. 97, 45 So. 879; Bonaparte v. State, 1913, 65 Fla. 287, 61 So. 633 and State v. Lewis, 1943, 152 Fla. 178, 11 So.2d 337. In other cases we recognized the invalidating effect of such discrimination, but found that it was not shown to have bee......
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Reliford v. State, 70--182
...error 'for all of the jurymen to be white in the trial of a Negro defendant charged with raping a white woman.' See also State v. Lewis, 1943, 152 Fla. 178, 11 So.2d 337. (2) Out-of-Court Identification in Absence of Reliford apparently relies upon the U.S. Supreme Court cases of United Sta......