West v. State
| Decision Date | 10 May 1900 |
| Parties | WEST v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Jackson county; Evelyn C. Maxwell, Judge.
Raymond West was convicted of murder, and brings error. Reversed.
Syllabus by the Court
1. In a trial for felony, if a juror, the judge, or the prisoner become incapacitated by illness or death, after the jury is impaneled and sworn in chief, the proper course to pursue is to declare a mistrial and begin de novo. In the case of a juror falling ill after the jury has been impaneled and sworn in chief, there is no impropriety in utilizing the remaining 11 on a new trial, but they should be retendered to the prisoner and resworn, and the defendant has the right to peremptorily challenge any of them on such retender, and has the right to his full complement of peremptory challenges just as though there had been no prior impanelment of a jury in his cause.
2. Evidence of the commission of another crime by the defendant contemporaneously with the one for which he is on trial is admissible, when it tends to prove the animus of the defendant in the commission of the crime for which he is on trial.
Wm. B. Farley and J. C. McKinnon, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error, defendant below, was indicted at the fall term, 1898, of the circuit court for Jackson county, for murder, was tried at the spring term, 1899, of said court, and convicted of murder in the first degree recommended to mercy, and sentenced to life imprisonment, and took writ of error.
The indictment is as follows: 'The grand jurors of the state of Florida, inquiring in and for the body of the county of Jackson, upon their oaths do present that one Raymond West late of the county of Jackson aforesaid, in the circuit and state aforesaid, on the sixth day of November, in the year of our Lord one thousand eight hundred and ninety-eight, with force and arms, at and in the county of Jackson aforesaid then and there being, did then and there, without authority of law, of his malice aforethought, and from a premeditated design to effect the death of a human being, to wit, one Sol Dozier, an assault did make in and upon the said Sol Dozier with a certain deadly weapon, to wit, a gun, then and there charged with gunpowder and certain leaden balls, which said gun, charged and loaded as aforesaid, he, the said Raymond West, then and there in his hand had and held at and against the said Sol Dozier, then and there, without authority of law, of his malice aforethought, and, from a premeditated design to effect the death of the said Sol Dozier, did shoot off and discharge; and that the said Raymond West, with the leaden balls aforesaid, by means of shooting off and discharging said gun so loaded, at, towards, and against the said Sol Dozier, did then and there, without authority of law, of his malice aforethought, and from a premeditated design to effect the death of the said Sol Dozier, strike, penetrate, and wound the said Sol Dozier in and upon the belly near the navel, and also in and upon the right arm of him, the said Sol Dozier, then and there, without authority of law, of his malice aforethought, and from a premeditated design to effect the death of the said Sol Dozier, giving to the said Sol Dozier, then and there, with the leaden balls aforesaid, so as aforesaid shot and discharged out of the gun aforesaid, by the said Raymond West, in and upon the body near the navel of him, the said Sol Dozier, one mortal wound, and also in and upon the right arm of him, the said Sol Dozier, one mortal wound, of which aforesaid mortal wounds the said Sol Dozier then and there instantly died; and the grand jurors aforesaid, on their oaths aforesaid, do say that him, the said Raymond West, in the manner and by the means aforesaid, then and there willfully, without authority of law, of his malice aforethought, and from a premeditated design to effect the death of him, the said Sol Dozier, then and there did kill and murder the said Sol Dozier, against the form of the statute,' etc.
The defendant before arraignment moved to quash this indictment upon the ground that it is vague, indefinite, and uncertain, and does not charge the commission of the homicidal act to have been with malice aforethought and from premeditated design to effect death. This motion was overruled, and such ruling is assigned as error. Under this assignment, the point urged here against the indictment is that it fails to allege that the infliction of the mortal wound was 'with a premeditated design to effect death.' This contention is without merit. The indictment, after alleging an assault by the defendant upon the deceased with a loaded gun, from a premeditated design to effect the death of the deceased, then alleges that the shooting and discharge of the gun at and against the deceased was done with such design, and then alleges 'that the said Raymond West, with the leaden balls aforesaid, by means of shooting off and discharging said gun so loaded at, towards, and against the said Sol Dozier, did then and there, without authority of law, of his malice aforethought, and from a premeditated design to effect the death of the said Sol Dozier strike, penetrate, and wound the said Sol Dozier in and upon the belly near the navel, and also in and upon the right arm of him, the said Sol Dozier, then and there, without authority of law, of his malice aforethought, and from a premeditated design to effect the death of the said Sol Dozier, giving to the said Sol Dozier, then and there, with the leaden balls aforesaid, so as aforesaid shot and discharged out of the gun aforesaid, by the said Raymond West, in and upon the body near the navel of him, the said Sol Dozier, one mortal wound, and also in and upon the right arm of him, the said Sol Dozier, one mortal wound, of which mortal wounds the said Sol Dozier then and there instantly died,' etc. The allegation of 'premeditated design to effect death' could not have been further utilized in this indictment without subjecting it to the criticism of unnecessary repetition and tautology.
After a full panel of 12 jurors had been selected and sworn in chief in the cause, but before any evidence was introduced, one of the jurors, J. D. Hartsfield, became ill, and was excused by the court with the consent of the state attorney, the defendant making no objection, and the court directed the place of the excused juror to be filled from special veniremen. In the selection of this twelfth juror the defendant exhausted the three peremptory challenges that remained to him after the selection of the first 12...
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