The plaintiff in error was indicted on November 22nd, 1893, in the Circuit Court of Duval county, for murder in the first degrеe. On July 6th, 1900, he was arraigned, and on July nth, 1900, he was tried and convicted of murder in the first degree, аnd on July 13th, 1900, was sentenced to death, and 'from this judgment takes writ of error.
The first assignment of errоr is that the court erred in passing judgment upon the defendant, because the in-, dictment is insuffiсient in law, form and substance upon which to base a judgment. We might disregard this assignment on the grоund that it has been abandoned here without argument, but, in favorem vitae, we have examined the indictment upon which the trial was had, and find no defect therein.
The second assignment of error is the denial of the motion for new trial. The grounds of the motion for new trial are: 1st. That the verdict is not supported by the evidence.
2nd. That the verdict is contrary to the law.
3rd. That the verdict is contrary to the law as charged by the court and the evidence produced on the stand.
4th. That one of thе jurors in this cause, to-wit: W. C. O’Neil, was member of the grand jury which found
As to the first three grounds of this motion, without rehearsing the evidence, it is sufficient fоr us to say that we have carefully considered the evidence and find it to be amply suрportive of the verdict found from the standpoint of both law and fact.
In support оf the fourth ground of the motion, it was shown by affidavits and from copies of the minute entries оf the Circuit Court for the November term, 1893, that the juror W. C. O’Neil who sat upon the trial jury was also а member of the grand jury that found the indictment, and it was further shown that neither the prisoner nor his сounsel knew of such fact until after the verdict, but immediately upon the discharge of the jury the prisoner’s counsel asked the juror W. C. O’Neil- if he was not on the grand jury that found the bill, and the juror promptly replied that he was.
Section 2851 of our Revised Statutes provides as follows: > “No member of a grand jury which finds a bill of indictment shall bе put upon a jury for the trial of that indictment, if challenged for that cause by the defеndant.” In the case of Gavin v. State, decided here at the last term, it was said of this statute: “The inhibition here placed upon the serving of a grand juror as a member of the trial jury to try an indictment found by him as such grand juror is clearly and expressly made conditional upon a challenge being interposed by the defendant for that cause. The effеct of the statute is not absolutely to disqualify a grand juror from serving on a trial jury to try indictments fоund'by such grand juror, but makes it only a ground of challenge for cause, which
What has been said disposed also of the third аssignment of error, based upon the denial of the defendant’s motion in arrest of judgemеnt, the grounds of which were: 1st. That the indictment is insufficient in law, from and substance upon which to- bаse a judgement.
2nd. Because one of the jurors in this case, to-wit: W. C. O’Neil was a member оf the grand jury that found the indictment in this court at the Fall term, for the vear A. D. 1893.
Finding no error in the record, the judgment of the court below is hereby affirmed.