Woodward v. State

• Decision Date: 10 April 1894
• Citation: 15 So. 252,33 Fla. 508
• Parties: WOODWARD v. STATE.
• Court: Florida Supreme Court

15 So. 252

33 Fla. 508

WOODWARD v. STATE.

Florida Supreme Court

April 10, 1894

Error to circuit court, Hillsborough county; Barron Phillips Judge.

William Woodward was convicted of murder in the first degree, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Pleas in abatement setting up mere irregularities in the drawing and summoning of juries are not looked upon with favor by the courts, and the greatest legal accuracy and precision are required in their allegations, and they must be free from uncertainty and ambiguity.

2. The second section of chapter 4015, Acts 1891 (Rev. St. p. 960) contemplated annual selections of jury lists by the county commissioners; and, where it is shown that a list of persons to serve as jurors had been selected by said commissioners for the year, the presumption is, in the absence of sufficient showing to the contrary, that the list was selected at a meeting held the first week in January of that year. The proviso in said section in reference to selecting a jury list in counties where criminal courts of record exist contemplated the existence of such courts at the time of the annual selection of the jury lists by the commissioners, and the creation of a criminal court of record in a county after the selection of such a list for that county will not affect the list already made, nor will it affect the official action of the commissioners in reference to selecting a jury list until the time arrives for the annual selection for the succeeding year.

3. The provision in section 2804, Rev. St., that, 'in counties wherein criminal courts of record are established, no grand jury shall be summoned to attend at any term of the circuit court, unless the circuit judge shall file with the clerk a written order directing a grand jury to be summoned,' was not intended to limit or regulate the power of the court, in term time, to direct the summoning of a grand jury where none had been ordered and summoned for the term; and a plea in abatement alleging that the indictment against the accused was found by an illegal grand jury, because no written order was filed by the circuit judge with the clerk, directing that a grand jury be summoned to attend and serve at said term of court, is defective, as it does not exclude the presumption that the indictment was presented by a legally constituted grand jury, or that the court did not, in term time, legally organize the jury that presented the indictment.

4. The notice provided in section 4, c. 4015, Acts 1891, for drawing jurors, is material, and the drawing of a jury without giving such notice would be irregular.

5. An issue made on a plea in abatement, setting up that the notice of the drawing of jurors required in section 4, c. 4015, had not been given, is one of fact to be tried by a jury, and a refusal to submit such an issue to a jury, and the disposition of it by the judge, will be error.

6. To an allegation, in a plea in abatement, that the grand jury did not select one of its members as a foreman, the state replied that the grand jury did select one of its members (naming him) as foreman, as shown by the records of the court. Held, that an issue tendered on the replication presented an issue to be tried by the court on the inspection of the record, and not one to be submitted to a jury.

7. Where the record shows that the requisite jurors to form a grand jury have been sworn touching their qualifications as such, and found qualified, and then, without taking the oath prescribed for grand jurors, retired under charge of an officer of the court, and selected one of their number (naming him) as foreman, after which they reported to the court the name of the juror so elected as foreman, and he was recognized by the grand jury and court as foreman during the term and acted as such, this will amount to a ratification of the election of such foreman, if it be that the foreman should be selected after the jury is sworn.

8. A witness cannot, on cross-examination, be interrogated as to facts and circumstances not connected with the matters stated on the direct examination, but the rule permits, on the cross-examination, an inquiry into all the facts and circumstances connected with the matters brought out in the examination in chief.

COUNSEL

J. B. Wall and Palmer W. Smith, for plaintiff in error.

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

OPINION

MABRY J.

The plaintiff in error was indicted on the 10th day of May, A. D 1893, during a term of the circuit court for Hillsborough county, for the murder of Samuel Kelly, and was convicted, on the 15th day of the same month, of murder in the first degree, as charged in the indictment. Before arraignment and trial, defendant filed a plea in abatement, and it appears that after a demurrer on the part of the state had been sustained as to a part, and overruled as to the remainder, of this plea, defendant asked leave to withdraw the plea filed, and to interpose an amended plea in abatement then presented, which was granted on condition that the demurrer to the plea withdrawn, and the ruling of the court thereon, should apply to the amended plea. The condition of the record as to the plea in abatement is that the defendant filed such plea, alleging that the indictment returned against him was found by an illegally constituted grand jury, as follows: That the board of county commissioners for Hillsborough county did not make out a list of not less than 475, nor more than 500, names of registered voters who had paid their last assessed capitation tax, to serve as jurors, and cause such list to be signed by the chairman of said board, and forthwith delivered to the clerk of said court prior to the finding and return of the indictment against defendant; that said clerk did not, at least 15 days before the sitting of the said term of court, draw from any box containing not less than 475, nor more than 500, names of registered voters, or supposed registered voters, the names of 12 persons to serve as grand jurors at said term of court; that the time and place of drawing the names of 12 persons to serve as grand jurors for said term of court were not advertised by written notices posted in three public places in said county ten days before the day on which the names of such persons were drawn from a box by the clerk of said court; that said grand jury did not select one of their number to be and to act as foreman of said jury; and that no written order was filed by the circuit judge with the clerk of the court, directing that a grand jury be summoned to attend and serve at said term of court. A demurrer filed by the state was sustained, as we understand the record, to all the grounds of the plea except as to the allegations in reference to the notice of drawing the grand jury, and that the grand jury did not elect a foreman; and as to these the demurrer was overruled. The state then filed a replication alleging that notice of the drawing of the grand jury that presented the indictment against the defendant was given by posting written notices in three public places in Hillsborough county ten days before the 17th day of April, 1893, when said jury was publicly drawn in the courthouse in said county, and that the grand jury did elect one of their number, to wit, Henry H. Scarlett, as foreman of the jury, 'as shown by the records of this court.' The defendant moved to strike out the words in quotation marks, and this motion was overruled. Defendant joined issue upon the replication, and demanded a trial of the same by jury, but the court declined to call a jury, and, upon hearing, overruled the plea in abatement. The rulings of the court sustaining the demurrer to the extent mentioned, refusing to strike out the quoted words in the replication, declining to submit the issues to a jury, and overruling the plea in abatement, are assigned as errors.

The case was tried before the act of 1893, c. 4122, became law. By the second section of the act of 1891, c. 4015, the boards of county commissioners of the several counties of the state were directed, at meetings to be held the first week in January of each year, or as soon thereafter as practicable to select from the list of registered voters who had paid their last assessed capitation tax in their respective counties a list of not less than 290, nor more than 310, persons properly qualified to serve as jurors, and possessing certain qualifications mentioned in the act, and which lists shall be signed by the chairman of such boards, and forthwith delivered to the clerk, and by him recorded in the minutes of the board. The following provisos are added: 'Provided, however, that in counties where county criminal courts now exist or may hereafter be established, the county commissioners of said counties shall make out a list of not less than four hundred and seventy-five (475), nor more than five hundred (500), names of registered voters, who have paid their last assessed capitation tax, to serve as jurors; provided, that if in any of the counties of the state the county commissioners shall not be able to select the number required by this section, they shall be authorized to select a less number, to be the highest number possible.' On the 10th day of April, 1893, the act creating the criminal court of record for Hillsborough county went into effect; and it is contended by counsel for plaintiff in error that, after this date, the box from which the jurors were drawn should have contained not less than 475, nor more than 500, names. It is not stated in the plea before us that the county commissioners for Hillsborough county did not, prior to the passage of the act creating the criminal court of record for that county, select the list of jurors, as...