31 Fla. 340 | Fla. | 1893
The plaintiff in error was indicted, tried and convicted during the Pall term, A. D. 1892, of the Circuit Court for Brevard county, of the crime of murder in the first degree, and the sentence of death passed upon him.
To the indictment the accused filed a plea in abatement alleging that he “ought not to be held to answer-
It is not necessary for us to devote much space here to the second ground of the plea in abatement. What was decided in Reeves vs. State, 29 Fla., 527,10 South. Rep., 902, is applicable to this ground of the plea, as the difference between the act of 1879 (Chapter 3123)' under which that decision was made, and the act of 1891 (Chapter 4015, sec. 2, Appendix R. S., page 960) under which the grand jury in the present case was selected, is not such as to rer der the decision inapplicable' to the latter act. We must presume that the County Commissioners performed their duty in selecting the number of 248 names as a jury list, in the absence of any showing that they abused the discretionary powers conferred upon them by the statute. This ground of the plea does not undertake to set up any such defense.
By an act of the Legislature passed in 1891 (Chapter 4015, supra, sec. 5) it is provided that “every grand .jury shall consist of twelve persons, and the assent of ■eight (8) of them shall be necessary to the finding of indictments.” The grand jury that presented the indictment in the' case before us was organized under •this act. The first ground set up in the plea for abating the indictment is, that the grand' jury presenting it is not such a body as is guaranteed by the Declaration of Rights, because eight of the number are authorized to find a true bill. It will be observed that the plea does not allege that only eight of the twelve grand jurors found the indictment, but that the grand jury is an illegal body, because eight of them are authorized to find the indictment. The Legislature has undertaken in the act referred to above to constitute a grand jury of twelve persons, and to authorize the finding of indictments with the concurrence of eight of
The language, “ no person shall be tried for a capital crime or other felony unless on presentment or inclictment by a grand jury, except” in the cases mentioned, standing out so prominently as it does in our Declaration of Rights, was designed as a protection to the life and liberty of the citizen, and as a guaranty against trial in the enumerated cases, except upon presentment or indictment by such a grand jury as was known at the common law. We think this is-the meaning of the Declaration of Rights when it refers to a presentment or indictment by a grand jury in the Circuit Court. What, then, was a grand jury at common law ? Anciently, it seems, this body consisted of only twelve persons, but in later times it was-composed of not less than twelve and not more than twenty-three, and the concurrence of twelve was absolutely essential to the finding of an indictment. 5. Bacon’s Abr. Indictment (C); Ibid, Jiories (B); Gladden vs. State, 12 Fla., 562 ; Gibson vs. State, 16 Fla.,
A careful examination of this subject leads us to the conclusion that it required not less than twelve, nor more than twenty-three, jurors to form a grand jury at common law, and that not less than twelve of the number must concur in finding the indictment in th'e Circuit Court. This matter is thoroughly reviewed, and authorities cited, in the case of State vs. Barker, supra. Such a grand jury, we think, is within the contemplation and meaning of the language of our Declaration of Rights, that no person shall be tried for a capital crime or other felony, unless on presentment or indictment by a grand jury, except in the cases, mentioned.
The act of 1891, sec. 5, supra, provides that every grand jury shall consist of twelve persons, and to this extent the act is constitutional; but it also provides, that the assent of eight of the twelve shall be necessary to the finding of indictments. The Constitution, as we have seen, contemplated a grand jury of not less, than twelve, nor more than twenty-three persons, twelve of whom must concur in the finding of indictments. The Legislature, then, has no authority to. authorize less than twelve of the grand jury to find an.
The plea in abatement does not allege that only eight •of the grand jury found the indictment in the case before us, or that any number less than the twelve conourred therein. The ancient practice of reciting in the caption of the indictment that twelve of the panel concurred in the presentation thereof, is not now in use, but the legal presumption is that an indictment properly endorsed and regularly returned into court was concurred in by the entire body. Law’s Case, 4 Greenleaf, 439. Unless, therefore, the clause in the statute that eight of the grand jury shall be necessary to find an indictment, vitiates the entire section, the demurrer to the plea in abatement was properly sustained. The fact that a section or a portion of a section of an act is unconstitutional does not necessarily render the whole act void. If the legislative purpose as expressed in the valid portions of the act can be accomplished independently of the unconstitutional portion, and considering the entire act, it can not be said that the Legislature would not have passed the valid portion had it been known that the invalid portion must fail, effect will be given to so much as is good. State ex rel. vs. Brown, 19 Fla., 563 ; State ex. rel. vs. J., T. & K. W. Ry. Co., 20 Fla., 616. One evident purpose of the act of 1891, supra, was to re
The Legislature of North Carolina passed an act in 1885 to establish a Criminal Circuit Court, to be composed of the counties of New Hanover and Mecklenburg, and directed that the County Commissioners of each of said counties, at least twelve days before the regular terms of court to be held therein, to draw the names of thirty-six jurors to serve as grand and petit jurors for the term. It also provided that at the term of court “there shall be drawn by a boy of ten years of age, or under, twelve jurors from said number of thirty-six jurors drawn as aforesaid, who shall constitute a grand jury for said court, nine of whom shall be necessary to agree before a bill of indictment shall be returned as true.” In State vs. Barker, supra, where it appeared that one of the grand jury was excused on account of relationship to the prosecutrix, and hence only eleven participated in the finding of
The second assignment of error is, that “the court erred in ruling that the venireman Wade Harris was a qualified juror, he having stated that he had formed an opinion, and that it would require evidence to change it.” The venireman Wade Harris stated that he had formed and expressed an opinion in regard to the guilt or innocence of the accused, but that the opinion was not of a fixed nature, and that he would be governed by the evidence. In reply to a question by the defense the juror stated that it would require-evidence to change that opinion. The defense'then challenged him for cause, and thereupon the court-asked the juror if he would be influenced by the opinion he had, or would he be guided entirely by the evidence which should be allowed to go to him from the-jury box. His answer was: “I would be governed by the evidence allowed to come to the jury by the*
The fourth error assigned is, that the court erred “in refusing to allow the plan of the building in which the shooting took place, and which had been introduced in evidence, to be sent to the jury room when sent for by the jury.” The testimony locates the scene of the killing at a certain house with adjoin
Another assignment of error is, that the court erred in refusing the third charge requested by the defend
The only remaining assignment of error is, that the •court erred in denying the motion for a new trial, and the only question presented by this motion is as to the sufficiency of the evidence to sustain the verdict.
We will not set out the testimony found in the bill of exceptions, as it would prolong the opinion unnecessarily ; nor will we enter into any extended discussion of it. The testimony has been carefully ex.amined and considered. If that introduced by the State, and especially the testimony of Azariah Robinson, taken in connection with the undisputed evidence in reference to the character of the pistol ball that •caused the death of the deceased, is true, the verdict •of murder in the first degree should be sustained. On the contrary, if the testimony of the witnesses for the .accused be accepted as true, the verdict should not be for a higher offense than manslaughter. Upon the jury devolves the responsibility, as well as the right to •determine the credibility of witnesses, and the weight
J udgment entered accordingly.