Ford v. State

44 Fla. 421 | Fla. | 1902

Mabry, J.

(after stating the facts.)

There is no bill of exceptions in the transcript, and the only question presented relates to the propriety of the ruling sustaining the demurrer to the plea in abatement interposed by the defendant.

Section 1 of the act of 1899, Chapter 4786, provides that “if it shall appear at any term of the Circuit Court that the jurors drawn for such term have been regularly drawn, and the list of panel so drawn shall be quashed, or if such panel .shall be quashed for any cause, or if there shall have been a failure or ommfssion to draw the list or panel as. is now provided by law, the judge shall, in open court, draw from the box in which are deposited the names of the 'persons selected by the county commissioners to -serve as jurors for that year, the names of thirty persons to serve as jurors at such regular or special term of the court; and -such drawing -shall be in the presence of the clerk or his deputy and of the sheriff or his- deputy; provided, however, that when no grand jury shall be required at such term, then only twelve names shall be drawn from such box, and where only twelve are drawn such of them as shall be summoned and appear shall be placed in the box -to serve as- petit juror® as provided) in section 3 of' this act. And, provided further, that whenever the Circuit Judge shall be satisfied that the public interest will be best subserved thereby, he may authorize the sheriff to-summons either number of persons aforesaid, for the purpose aforesaid, from the body of the county, and the-names of such of them a® shall appear, shall be placed in-the box as provided by section 3 of this act, and for the-purposes therein provided.”

The -third -section provides- that “it ■ shall be- the -dluty of the judge to place the names of the thirty persons so drawn, or so many of them as -shall appear in response to said summ-'ons, -ito a box, and draw therefrom file-names of eighteen persons who shall- serve as grand jurors fqr said regular or special term, and the persons whose names shall remain in said box shall serve as petit jurors-for the first week of said term of court.”

The plea shows that the regular venire of grand jurors for the term at which the indictment wasi found was quashed by the court for cause shown, and there is no contention that error was- committed' in disposing of this venire. The grounds, in substance, alleged in the plea for quashing the indictment are, first, that after thirteen of the fourteen grand jurors- drawn and summoned for the term had been examined and found competent to serve, the entire venire was quashed and1 a new venire was issued under which the same thirteen jurors and five others were summoned, and that in the organization of the jury the five only were examined as to thei'r qualifications to act as grand juror's; and, second, that none of the names of jurors summoned under the special venire were placed in a box and drawn therefrom. The brief for plaintiff in error lays no stress upon the alleged fact that the thirteen jurors who had been examined before the regular venire was quashed were not re-examined when again summoned on the .special venire. There is no allegation or suggestion that any of them were not in fact .duly qualified to serve as grand jurors. Our statutes prescribe the qualifications and exemption of jurors, and it is the practice of the courts to examine grand jurors as to their qualifications in organizing the juries, but there is no- statutory direction in. reference to this examination. In the present case the thirteen jurors had in fact been examined and found competent immediately -before they were again summoned and the court was advised as to their qualifications, but independent of this the allegations of the plea in reference to their examination show, dn our judgment, no sufficient grounds for quashing the indictment.

The plea -shows that after the first venire was quashed the court directed the issuance of a new or special venire and that in compliance with it the deputy sheriff summoned eighteen persons in all to serve as grand jurors, all of whom were accepted.

The settled rule in this court is that in pleas in abatement setting up simply irregularities in the selection of jurors the greatest accuracy and precision in pleading are required, and such pleas must be certain to every intent. Jenkins v. State, 35 Fla. 737, 18 South. Rep. 182; Tervin v. State, 37 Fla. 396, 20 South. Rep. 551; Knight v. State 42 Fla. 546, 28 South, Rep. 759. We may, therefore, legally assume, an the absence of any certain and precise allegation to the contrary, that'the court, upon the quashal of the first venire, directed) the sheriff to 'Summons • eighteen persons to serve as a grand jury from| the body of the county. The second proviso to section one of Chapter 4736, supra, expressly authorized such a direction, its language being that “whenever the Circuit Judge shall be satisfied that the public interest will be best subserved thereby he miay authorize the sheriff to summons either number of persons aforesaid!, for the purposes aforesaid, from the body of the county.” The “either number” refers to a petit jury of twelve persons or a grand jury of eighteen persons. This proviso further directs that the names of such of the persons summoned and appearing shall be placed in a box as provided by section three, and for the purposes therein provided. Section three seems to provide only for placing in a box and drawing therefrom the names when thirty persons are drawn, which would be the case when both grand and petit jurors are needed. When, however, only eighteen grand jurors are summoned where is the necessity or reason for placing the names in a box and immediately drawing all of themi out to organize the jury? In the second proviso to the first section when no grand jurors are needed, and only twelve names are drawn to serve as petit jurors, the direction is that the names of those summoned and appearing shall be placed in the box to serve as petit jurors as provided in section 3sof this act. The clause “as provided in section 3 of this act” has reference to the purposes for which they are drawn, and the box mentioned in this proviso contemplates apparently the jury box. The court is given the authority as stated in the third proviso when the regular list oir panel is quashedl to have summoned from the body of the county either a grand or petit jury, and when only a grand jury is summoned it was probably never intended by the legislature that the names should be placed in a box to be again immediately drawn out. If, however, by s strict literal construction of the third proviso, when the court directs the sheriff to summons from- the body of the county a grand jury only, the names are directed to he placed in a box provided by section 3 and ¡dirawn out, what possible injury could result to'the defendant by failure of the court to put the names in a box? Conceeding that it is the practice in this State that irregularities, even slight, when they show a substantial departure from the provisions of law in respect to- the selection, summoning and empanelling of jurors are proper grounds of -objection to the jury, still when it affirmatively appears that no possible injury could accrue to the defendant by the departure, the objection should] not avail. In our opinion the plea sets up no sufficient ground for quashing the indictment and the court did no-t err in sustaining the demurrer to the plea.

W-e have considered the only assignment of error and point presented, and finding no error therein the judgment must be affirmed. Let an order1 be entered affirming the judprrerT.