42 Fla. 546 | Fla. | 1900
At the Spring term, 1900, of the Circuit Court of Alachua county, plaintiff in error was tried and convict
The defendant filed pleas in abatement, to which a demurrer interposed by the State was sustained. One of these pleas alleged that at the time the indictment was found and presented, another indictment for the same charge was pending against the defendant. This plea was bad and the demurer to it properly sustained. Smith v. State, 42 Fla. -, 27 South. Rep. 868. The other pleas alleged that the grand jury which found the indictment was not a legal body. It appears from the allegations of these pleas that there was no Criminal Court of Record in Alachua county; that the persons constituting the grand jury were not summoned by order of the presiding judge from bystanders or the
The defendant failed to file a joinder in the, State’s demurrer to the pleas in, abatement, and this omission was made the basis of a motion in arrest of judgment. The record shows that the counsel for the defendant and the, State waived argument of the demurrer, and submitted the demurrer without argument for decision, and no objection based upon the failure to file the joinder was made until after verdict rendered upon his plea of not guilty. The, motion in arrest on the ground stated was properly overruled, because the ommission of the record in a criminal case to- show a joinder in a demurrer is immaterial, and cannot be objected to, after the decision of the demurrer. Commonwealth v. McCormack, 126 Mass. 298; Dixon v. State, 13 Fla. 631.
The following, among other instructions was given by the court: “If the jury from the evidence, beyond a reasonable doubt, that the defendant Wm. J. Knight, at any time within two years before; the finding of the in
The judgment is reversed, and a-new trial awarded.