18 Fla. 889 | Fla. | 1882
delivered the opinion of the court.
The record in this case shows that on the 21st day of November, A. D. 1881, a Circuit Court was held at Tallahassee, in the county of Leon, and that on that day the venire facias previously issued for eighteen grand jurors to serve at that term was returned by the sheriff of that county; that by such return it appeared that three of the pérsons named in such venire were not found in the county, and that the "other fifteen had been duly summoned ; that
To this indictment the defendant filed his plea in abatement, and says “ that the whole number of the grand jury drawn for this term of the court not having been summoned, the court did not direct the clerk to draw a sufficient number to complete the said grand jury from the list furnished by the County Commissioners as provided by law, and to issue a venire for the summoning of the persons so drawn, but that portion of said grand jury were summoned by the sheriff of said" county without having been so drawn.”
To this plea the State’s attorney demurred and the plea was overruled by the court. The defendant was then tried
The counsel for the defendant then moved for an arrest of the judgment upon the following grounds :
1. The whole number of the grand jurors drawn for this term of the court, and for- whom a venue had been issued, were not summoned, and- a portion of said grand jury were summoned by the sheriff without their names-having been drawn by the proper officers according to law.
2. There was no .larceny set forth in said indictment, because — 1st, the moneys, goods and chattels alleged as having been stolen were not specifically mentioned, and 2d, there was no ownership alleged.
This motion was denied by the court, and the defendant brings his case here by writ of error and assigns errors in substance as follows:
I. The whole number of jurors drawn for the term of the court not having been summoned, it was the duty of the court to direct the clerk to draw a sufficient number to complete the jury from the list furnished by the County Commissioners in the same manner as provided by law for the drawing- in the first instance ; that the court erred in directing a venire to issue to the sheriff to make up the deficiency by summoning seven qualified persons from the body of the county, and that the plea in abatement should have been sustained.
II. That the court erred in holding that it was unnecessary in an indictment for burglariously breaking and enter
IIT. That the court erred in ruling that it was unnecessary to charge ownership of the property so stolen or attempted to be stolen.
IY. That the court erred in this that the counsel for the defence having presented'to the Judge instructions in writing ou points of law, to be giveu to the jury, the Judge did not declare in writing' to the jury his ruling thereupon as present, and pronounce the same to the jury as given or refused.
The-first alleged error brings up the question of the legality of the grand jury, and the plea in abatement was a proper method to raise this question before pleading in bar. The counsel for the plaintiff in error insists that there having been a failure on the part of the sheriff to find within the county and summon the whole number of grand jurors named in the first \enire, and the court having excused from duty some of those, who had' been duly summoned, that the deficiency in the panel should have been made up by drawing from the box containing the list of three hundred in the same manner as the original jury were drawn, and cites Section 32 of Chapter 1628, Laws 1868. On the 20th day of February, 1875, (Chapter 2046,) an act was approved, which changes the effect and operation of the section so cited, if it does not entirely repeal such section. That act in section one provides: “That whenever, for any cause, no grand or petit jurors have been drawn and summoned in the manner provided by law for any regular terms of the Circuit Courts of this State, it shall be lawful for said courts, or the Judges thereof, to order the clerks of said courts to issue special venires-for a sufficient number of such jurors for said terms to be directed to the sheriff,
The counsel also cites Gladden vs. The State. 13 Fla., 623. This case was decided before the act of 1875 was passed, and endorses what we have in this opinion said. In that case the record disclosed the fact that there was a failure to summon the whole number of petit jurors, and the court held that in such ease, under section 32 of the act of 1868, the jurors must be drawn and summoned “according to the provisions of this chapter,” that is from the list as provided by the County Commissioners. It will be seen that section ten above cited, providing for the summoning of persons to fill deficiencies, applies only to grand jurors and not to petit jurors. If an entire grand or petit jury may be drawn and summoned from by-standers or the body of the county, as provided by the act of 1875, we can see no
The second and third errors assigned are that the court erred in ruling, first, that it was unnecessary in such an indictment to give a description of the property stolen or attempted to be stolen ; and, second, that it was unnecessary to charge ownership of such property.
The statute under which this indictment was found provides that “ whoever breaks and enters a dwelling-house in the night time with such intent, (i. e.,1 with intent to commit the' crime of murder, rape, robbery, larceny or other felony,’) or having entered with such intent, breaks such dwelling-house in the night timé,” &c., shall be punished,
The fifth and last assignment of error is as follows: “ That the counsel for the defence having presented to the Judge instructions in writing on the points of law to be read to the jury, the Judge did not declare in writing to the jury his ruling thereon, or present and pronounce the same to the jury as given or refused.” There is no evidence of such dereliction of duty on the part of the Judge; on the contrary the record contains the propositions of law upon which the defence asked the court to charge the jury in writing, and immediately thereunder are written the words “ Refused, December,1881,” and signed by the Judge. The ruling of the court was in writing, and there is no evidence in the record that he did not read his written endorsement to the jury, even if that was necessary.
Judgment affirmed.