32 Fla. 56 | Fla. | 1893
At the Spring term 1890, of the Circuit Court for Marion county, the plaintiff in error was indicted for murder in the first degree of one William J. Jerkins. After various continuances the trial was had at the Spring term 1893, and resulted in a conviction for manslaughter in the second degree. From the sentence pronounced, the defendant seeks reversal here on writ of error.
The first assignment of error insisted upon is the sustaining of the State’s demurrer to a plea in abatement. interposed by the defendant, which plea claimed an abatement of the prosecution upon the ground that the foreman of the grand jury that found the indictment at the Spring term of the court, 1890, had failed to comply with the provisions of Section 22, p. 624, McClellan’s Digest, Section 2809, Rev. Stat., which requires the foreman of every grand jury to return to the court a list under his hand of all witnesses who
The 8th and 9th charges given of the court’s own motion are assigned as error, and are as follows: “8th. If you believe from the evidence that Harriet E. Jerkins,, the wife of the deceased, was, at the time that deceased was killed, the hired servant of defendant. and that there was reasonable ground for the defendant to apprehend a design on the part of the de
The 9th instruction above, given on the court’s own-motion, is also erroneous because it is confusing, and might have a tendency to mislead the jury info a belief that the court was convinced of the propriety of a verdict of murder in the first degree. It begins with the hypothesis that if the jury shall conclude that the defendant is not guilty of murder in the first degree, that then if they find another given state of facts to be true they must find him guilty of murder in the first degree, even though they may already have concluded that he was not guilty of that degree.
As the errors in the instructions necessitate another trial of the cause, we think it proper, although it is not
The judgment of the court below is reversed and a new trial ordered.