60 Fla. 8 | Fla. | 1910
The plaintiff in error was indicted for the murder in the first degree of one Joseph A. Hutto and convicted of murder in the second degree.
The court did not err in sustaining the demurrer to the plea of former jeopardy. This plea does not show former jeopardy. It was filed on the 2nd day of July, 1909, and
It is no longer doubted now that in cases of manifest necessity such as the sickness of the prisoner a mistrial may be ordered even in capital cases, and the discharge of the jury in such a case will not bar a subsequent trial upon the same indictment. Ellis v. State, 25 Fla., 702, 6 South. Rep., 768; Adams v. State, 34 Fla., 185, 15 South. Rep., 905; Smith v. State, 40 Fla., 203, 23 South. Rep., 854.
In the event the prisoner, in the progress of the trial, becomes, unable to proceed with the trial by reason of sickness, his jeopardy which had commenced at once ceases. Hughes’ Crim. Law & Proc., chapter 2624; 1 Bishop’s New Crim. Law, chapter 1032.
We think the sickness of the defendant being such that the trial could not go on presented a case of manifest necessity sufficient for the court to discharge the jury and declare a mistrial. 10 Ann. Cas., 1086.
Neither will this conviction be set aside because the defendant was not present at the discharge of the jury. While, as a result of the humanity of the law, the prisoner in the trial of a capital case has a right to be, and must be present, yet, if the defendant becomes too sick to be present in court .at every stage of the trial the case should be either temporarily passed to await his convai
This arises also from the humanity of the law and from the necessity of the case. Tender regard for the humanity of the law would require that a prisoner should not be brought into court if he is sick and his life would be endangered merely to declare a mistrial. Of what assistance to his counsel would a prisoner be at such a time?
So the jury have been discharged by the court where a prisoner was found to be insane, 1 Hale 35; or in a fit, Leach, 443; or be taken in labour, Foster, 76. In all these cases it was ruled that the court may discharge the jury and remand the prisoner for another trial. Rex v. Edwards, 3 Campbell’s Nisi Prius Reports, 207, note.
We find nothing in the record to show that the court refused “to excuse from the jury the juror Bowman,” and error predicated thereon must fall.
Under the fifth and sixth grounds of the motion for a new trial it is contended that the court erroneously admitted in evidence the alleged dying declarations of the deceased because the evidence shows that at the time of said declarations the deceased did not believe he was' in articulo mortis, that he was excited and that as a matter of fact he was not dying.
It is undoubtedly true that in the case of homicide it is essential to the admissibility of dying declarations that they were made under a sense of impending death, and this is a preliminary fact to be shown to the court by the party offering them. Roten v. State, 31 Fla., 514, 12 South. Rep., 910; Dixon v. State, 13 Fla., 636.
We think the evidence shows that at the time the declarations were made the deceased not only evidently considered himself in imminent danger but that he evidently believed he was without hope of recovery. So .this contention fails.
We discover no reversible, ,e.ror in the instructions given or refused.
The judgment is affirmed:'