38 Fla. 46 | Fla. | 1896
The plaintiff in error was indicted at the Fall term, A. D. 1895, of the Circuit Court for Wakulla county
Errors are assigned on the original record filed here, that the minutes of the trial court do not show'- that the grand jury returned any indictment into court against plaintiff in error, and that there is no record evidence of a true bill signed by a foreman of the grand jury charging him with the crime of murder. Subsequent to the filing of the record and assignment of errors a diminution of the record was suggested, and in obedience to a certiorari the clerk has certified an additional record in the case. In the complete record as now before the court we find not only an indictment in proper form, signed by the State attorney, endorsed “a true bill,” and signed by the foreman of the grand jury, and marked filed in open court by the clerk, but a minute entry that the grand jury came into open court and returned an indictment for murder against the plaintiff in error. The form of the entry is as follows, viz: “The grand jury then came into open court and rendered the following indictment, to-wit:
State of Florida 1 Murder. A true bill, vs. > James L. Oliver. } S. Roddenberry, foreman.”
Such a record entry followed by a proper indictment, signed and endorsed as directed by the statute, affords-sufficient record evidence of the finding and return into open court of an indictment against an accused for a felony. Collins vs. State, 13 Fla. 651; Johnson vs. State, 24 Fla. 162, 4 South. Rep. 535.
It is further assigned as error that the record does not show that a special venire for petit jurors to try the accused was executed pursuant to the order of the court, nor whether the petit jurors who rendered the verdict against him were ever drawn from any list of the regular or special venire. The minute entry found in the transcript is as follows, viz: “It appearing to the court that a sufficient number of the jurors, of those drawn and summoned, can not be obtained for the trial of this cause, now, on motion of the State attorney, the defendant being present, the court caused to be drawn from the box, to be summoned, fifty qualified jurors to complete the panel for the trial of said cause, ond directed the clerk to issue a special venire for said jurors, returnable on next Wednesday morning at 8 o’clock.” On the return day of the venire the record recites that after the accused was arraigned and plead not guilty, a jury of twelve men came, who were duly elected, tried and sworn to try the issue, and further setting forth the form of the oath required by statute in such cases. No exception was taken in the Circuit Court to the drawing or empanneling of the jury. There is no merit in this objection made here for the first time. The presumption
John Linton, a son of the deceased, was examined by the State, and, as shown by the bill of exceptions, testified as follows: “Oliver accused me of killing his dog. I told him that I did not do it; then he and my father had a few words, and Oliver started towards the back door of the store; when he got to the door he shot my father twice and shot me twice. (Objection by defense, that defendant was not on trial for the shooting of the witness; objection overruled and defense excepts to the ruling of the court).” It is now insisted that the court erred in the ruling stated. All the evidence, without contradiction, shows that when the killing occurred, the accused, the deceased and his son, John Linton, and others, were in one room, and that the accused first shot the deceased twice with a pistol, and instantly discharged two loads at the son, both taking effect, and then shot the father a third time. The shooting was done in rapid succession, and, according to the son's version of the affair, the altercation pre
The accused requested the court to give to the jury the following instructions, viz: “That before you can find the defendant guilty the evidence must exclude every other supposition but that the defendant was .guilty of making a deadly assault upon H. S. Linton with a premeditated design and malice aforethought to effect the death of said Linton.” 2. “The legal presumption of innocence in this case as (is) a matter of •evidence to the benefit of which the defendant is entitled, and to find the prisoner guilty the proof of his guilt must not only be consistent but inconsistent with any other reasonable conclusion, otherwise you should find him not guilty.” The court refused to give the instructions, and the bill of exceptions recites: “to which said opinion and the refusal of the court to give the above charges the said defendant by his attorneys did
An accused is entitled to the presumption of innocence until it is overcome by testimony beyond a reasonable doubt, and to have the court to so instruct the jury, unless such instruction is covered by one already .given. Reeves vs. State, 29 Fla. 527, 10 South. Rep. 901. The failure to properly except to the paragraph •contained in the second charge mákes it unnecessary vto say anything more in reference to it.
What has been said disposes of all the assignments •of error made and argued here. Counsel submit without argument the assignment that the verdict is contrary to the evidence and charges of the court, and we will enter into no discussion of them, further than to .state that they can not be sustained.
The judgment will be affirmed, and it is so ordered.