Thompson v. State

• Decision Date: 31 July 1906
• Citation: 41 So. 899,52 Fla. 113
• Parties: THOMPSON v. STATE.
• Court: Florida Supreme Court

41 So. 899

52 Fla. 113

THOMPSON v. STATE.

Florida Supreme Court, Division A.

July 31, 1906

Error to Circuit Court, Marion County; William S. Bullock, Judge.

J. Shaw Thompson was convicted of manslaughter, and brings error.Reversed.

Syllabus by the Court

SYLLABUS

A circuit court in the proper county acquires jurisdiction on a change of venue in a criminal case, even though the clerk's certificate substitutes for the statutory words 'relating to the case' the words 'so far as the same relates to the indictment against A. for murder,' and actually transmits two indictments for murder against A it clearly appearing that all the proceedings on the change of venue had reference only to the second indictment, which is sufficiently identified.

Section 2934 of the Revised Statutes of 1892 as to the clerk's duty in transmitting record on change of venue requires certification only of the copies of the record entries.Original papers are to be transmitted by the clerk, but no certificate is required.

Even though the clerk transmits on change of venue two original indictments for the same crime, jurisdiction is not lost thereby, when it clearly appears upon which indictment the change was made and trial was had.

A jury drawn from the box by the court at the end of a calendar year to serve for the ensuing week of a regular term does not become disqualified to sit by reason of the fact that before a case is actually called a new jury box has been prepared for the year by the county commissioners.The drawings are to be made from the box provided at the time of the drawings.

The refusal of the trial court in a criminal case to order a 'view' in another county will not be disturbed; no abuse of discretion being shown.

Objections to questions that may bring out proper testimony are properly overruled.

A motion to strike testimony must not be too broad.Where part of the testimony so sought to be striken is clearly proper the motion may for that reason be denied.

Testimony for the state in rebuttal, to contradict a material fact brought out by the defense, is proper.

The primary penalty imposed being a money fine and costs, and in default of payment imprisonment in the state prison, the judgment is reversed for proper sentence.Dean v State,26 So. 638, 41 Fla. 291, text 294.

COUNSEL

R. L. Anderson, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State.

OPINION

COCKRELL J. J.

Shaw Thompson was indicted on April 12, 1905, in Citrus county, for the murder of James M. Tillis.A change of venue was granted at his instance, and the trial had in Marion county, where he was convicted of manslaughter, and after overruling motions for a new trial and in arrest of judgment the court, on January 13, 1906, sentenced him to pay a fine of $3,000 and costs, and in default thereof to imprisonment in the state prison at hard labor for five years.From this he seeks relief here by writ of error, assigning 45 errors.

Taking up such errors as are material and properly presented, we shall dispose of them in their logical and chronological order.

First, then, to be considered, is the attack on the proceedings upon the change of venue.The change was made from Citrus county to Marion county, an adjoining county in the same, the Fifth judicial circuit, and the only section of the statute which we are called upon to consider is as follows:

'2934.Clerk to transmit record.--When a change of venue is ordered, the clerk shall immediately enter the proceedings of record and transmit all the original papers filed in the case, with a certified copy of the entries in the record relating to the case, to the clerk of the circuit court of the county to which the venue has been changed, retaining, however, a copy of all the papers transmitted.'

It appears that the clerk of Citrus county transmitted five pages of copy taken from his court minutes which he certifies 'contain all the minutes of the circuit court of said county at its spring term, 1905, so far as the same relates to the indictment against J. Shaw Thompson for murder.'These minutes disclose that there were two indictments filed on the same day against Thompson for the identical offense, to each of which he pleaded not guilty.It further appears, however, that when he was arraigned upon and pleaded to the 'second indictment'he moved for a continuance of 'this cause,' which being denied, 'this cause' was set for April 14, 1905, and a venire for 75 persons ordered.'Then the defendant presented affidavits' showing excitement and prejudice against the defendant.It was ordered that a change of venue be had herein, and that this cause be changed to Marion county, Florida, in this circuit, for trial, and that the case be set for trial on Monday, the 8th day of May, 1905, at the courthouse in Ocala, of said county, etc.

There may be some confusion in the minds of the hypercritical as to the use of the words 'cause' and 'case' in the order of the court, as also in the language of the certificate of the clerk substituting for the statutory phrase 'relating to the case' the words 'so far as the same relates to the indictment against J. Shaw Thompson for murder.'From the collocation, the immediate sequence, it appears with sufficient clearness and definiteness that the venue was changed only as to the case made by the second indictment against Thompson for the murder of Tillis, and while the clerk of Citrus county construed the words 'relating to the indictment' as being broader in their meaning than would be the statutory phrase, and so actually transmitted the first indictment and proceedings thereunder, yet every essential prescribed by the statute for change of venue has been complied with.

A citicism is further made that the clerk did not certify to the transmission of the original papers.The quoted section of the law does not require certification of anything other than the copies from the record entries.He is ordered merely to transmit the original papers which appears to have been done.

It is further objected that there is confusion as to the indictment upon which he was tried.As we have said, only the second indictment was transferred.There was some uncertainty in our minds from the transcript as originally presented to us as to which of the indictments copied therein was filed first, a penciled mark, '#2,' only being placed upon the one copied last therein; but upon a suggestion from this court to the clerk of Marion county this uncertainty has been cleared away by a proper certificate from said clerk.The difficulties encountered by the court in Curry v. State,17 Fla. 683, are not present here, and the decision there is in no wise affected or modified by what we now say.

II.Next, as to the drawing of the jury: We may say here parenthetically that a plea in abatement based upon the drawing of the grand jury was offered and its filing refused.This point sought to be raised by this plea has recently been overruled by this court in Colson v. State(Fla.)40 So. 183, and is no longer insisted on.It is urged that the court erred in drawing from the jury box on December 28 1905, regular venire for the ensuing week, and a special venire for this cause returnable January 3, 1906.The theory of the plaintiff in error is that all the jurors so drawn and summoned are incompetent and disqualified to serve in a cause set for January 3d, by reason of the fact that on said day the county commissioners had met in regular session, selected jurors for the year 1906, and completed the jury box for that year.This theory is altogether untenable.The statutes prescribe that the county commissioners shall make out a new jury box each year at their meeting to be held the first week in January in each year, or...