28 Fla. 77 | Fla. | 1891
I. The first error assigned is the overruling the plea in abatement. It set up that one of the grand jurors who found the indictment was not a registered voter. There was issue joined on plea and a formal trial resulting adversely to the defendant. The evidence fully sustains the finding. It is unnecessary to recite if here.
II. It is also assigned that the court erred in permitting the jury after hearing all the evidence on the part of the State, and the argument of the State Attorney before the issues were submitted to the jury by reading the indictment to them, and without the -jury being resworn upon their mir dire as to their qualifications as jurors, and in permitting the same jury to sit in the same cause, and in sustaining the defendant’s motion to proceed with the trial after the State’s evidence had been given to the j nry, and the State’s counsel had argued the same before the jury, and in permitting the defendant’s attorney to waive the defendant’s constitutional right to another and different jury to try his cause.
The record shows that the jirisoner was arraigned, the inictment read to him, and that he pleaded not guilty, that the jury were sworn, and the witnesses in
Not only was the reading of the indictment and the re-examination of the witnesses done on the motion of the prisoner, but if an exception to it would be of any avail, there was none made in the lower court at the time. There is certainly nothing before us to review. Assuming, however, that an exception could have availed anything, and that one was made, it seems impossible that the defendant has suffered anything by the course pursued. Without saying that it would not have been sufficient if the indictment had been then read, we are entirely satisfied that it would have been entirely sufficient if the court had of its own motion, or on motion of the State Attorney, directed the same course to be pursued that was. Counsel for prisoner did his client no harm in making the motion. By his
III. Each member of this court has carefully considered the entire record in this canse to see if the tesmony sustains the verdict, and also with an eye to the discovery of any error not covered by the assignment, that can be considered in the absence of an exception in the lower court.
It cannot be denied that the testimony is sufficient to sustain the verdict. Its credibility was a question for the jury.
There was no exception taken to the charge of the court to the jury, either in the motion for a new trial, or before, and for this reason we cannot consider the error assigned upon the court’s charging the jury as to the recommendation to mercy, which is the only error assigned that has not been mentioned above. We have found no error that can be considered without an exception having been taken in the Circuit Court. We have considered all to which an exception was taken. We have exercised the fullest care, not only because of the gravity of the ca.se, but we have felt a sense of very grave responsibility, as tiie unfortunate man has had no counsel in this court. The State sub
The judgment is affirmed.