*1 910 as
mining rеasonable men their verdict on substantial sus- taining testimony under fair charges. See Schultz v. The Co., 73; Pacific 14 Ins. Basnett, Fla. McMurray v. 18 Fla. 609; Elec. 287, Co. v. 58 Fla. 51 Cubbage, So. Jacksonville 139; 360, 367; Pensacola Elec. Co. v. 59 Bissett, Fla. 52 So. 234, A. Levy, C. L. R. Co. v. 68 Fla. 67 47 So. DeFuniak Perdue, 234; v. Springs 69 Fla. Jennings So. Pope, 471. So.
Affirmed. C. J., and Brown J.,
Whitfield, concur. Davis, J. J., P. and Terrell J., concur in Ellis, Buford, the opinion and judgment. Cary General, D. Landis ex rel. Attorney as v Judge of the Circuit Court of Lewis, 14th Amos . Circuit. Judicial
Opinion Filed March 1935. *2 Carter, Jr., Relator; John H. State Attorney, for McClellan Ray, Respondent. & for an original This is mandamus in the nature of J. Davis, in the name procedendo brought of the Attorney General the
of State relator for the purpose coercing as of the re- as of the spondent, Judge Circuit Court of the Fourteenth Circuit, proceed with the trial of a criminal in- Judicial applicable with the law' dictment accordance to a case wherein a has been the by conviction reversed on the Supreme Court error and cause writ remanded by new trial law. The facts as disclosed according mandamus, the writ and respondent alternative the thereto, return are as follows: Judge’s 13, 1932,
On December one P. I. Chance killed one J. R. Flanders Calhoun County, Florida. At the 1933 Term of Spring county, the Circuit Court of that an in- dictment duly was returned grand jury charging said Chance with the degree first murder of said Flanders. 1933, the July, defendant placed upon Chance was Circuit Court of Calhoun County upon the charge of first degree murder contained in the indictment.
Prior to the trial, beginning defendant moved quash the Court to regular special and venires sum- therefor, moned alleging illegality filling from box which the venires were drawn. The motion
overruled, and empanelled and from said venires sworn, was convicted proceeded was entered Judgment murder. degree verdict, writ of error sued upon out him, solely upon was reversed this Court he been tried an illegal jury. had ground trial, 10, 1935, called for again the case was January
On a trial of the defendant insisting upon the State indictment. contained charge of Court of Calhoun Judge Circuit respondent, *3 however, the jurisdiction to entertain of County, refused de- murder that degree upon grounds of first charge upon put jeopardy been heretofore Chance had fendant a acquitted degree of murder first the charge General, of the petition Attorney Wherеupon, upon jury. herein, requir- was mandamus issued an alternative writ of ju- trial entertain presiding judge the respondent as ing mur- first charges degree case risdiction of der, he not do so. does why to show cause return, Circuit has made his stat- respondent Judge his with command of the ing complying reason defendant writ be that the Chance has alternative the ver- degree of the of first murder acquitted charge jury convicting degree dict of the him of second murder. return, writ, notwithstanding Motion for peremptory has made relator. writ, support his motion for At- a peremptory
torney General advances contention inasmuch as the that verdict of second was guilty degree appeal murder on defendant, Chance, set aside as at illegal the instance of the successfully prosecuted of error to judg- who writ (Chance against ment rendered the first trial at Rеp. 663), judgment Fla. Sou. which was reversed because a challenge of the array trial overruled, erroneously relator has' never been placed in because of the jeopardy illegality which tried him and that therefore defendants’ con- said structive acquittal first becаme degree nullity .murder eo instanti of conviction of second degree murder was reversed because of an constituted illegally trial put proposition jury. way, another the re- To lator’s argument is to the effect that Chance defendant never been acquitted first legally because of the fact that he never jeopardy previous trial upon the him for murder in indictment found the first because has ever been degree, legally no said at the evi- empanellel on denced the reversal of the verdict and ground. law, interpretations
At common and under the Florida, pro- the State including American jurisprudence, offense includes for the same jeopardy from tection where, in- on valid further immunity prosecution from the accused jurisdiction, competent in a court of dictment *4 sworn to empanelled jury a regularly acquittеd by is 1, State, 52 41 Fla. Sou. Allen v. guilt. defendant’s issue of 188, 10 Ann. Cas. 1085. The Rep. St. 593, 120 Am. Rep. one who is convicted of crime less in de- rule applies than the offense for which he was' indicted. such gree implication acquitted the defendant by instances is as a bar plead acquittal offense and to a greater may it, even the conviction though indictment subsequent State,, Mann lesser offense is reversed on v. appeal. 610, 207; 23 3 Ex 51 Fla. Fla. Sou. Parte Rep. Vickery, 151, 77; State, 55 46 200, 40 Fla. Sou. West v. Sou. Rep.
914 93; State, 262, 525; v.
Rep. Golding Rep. Sou. 208. Rep. Fla. 9 Sou. Johnson L., S., Section C. G. R. G. reads as follows: “No shall be held to аnswer on a person second indict- ment, complaint, information or for a crime of which he acquitted, such acquittal may pleaded but be any subsequent prosecution bar of for the same crime, defect form any in the or substance notwithstanding indictment, or complaint. (Ch. informаtion 1891, Sec. 7).” Acts Chance, prior to reversal of the first judg- conviction,
ment of on placed trial against his consent. At the very beginning of that trial he filed his challenge to the array both the on and regular special venires. The State resisted the defendant’s efforts have a prоper jury empanelled and contended the irregularities com- plained to the challenge were not array, sufficient render the and jury illegal, the trial so held. The court error committed the trial court in thus over- improperly and ruling disallowing the challenge defendant’s array rеgular and special jurors, venires of trial of a procedural, not fundamental character. And had defendant, Chance, convicted duly insisted it as trial, cause for a new ir if he had failed to it assign in this Court writ of ground error as for reversal of the judg- murder, ment him of such error have been thereby waived thus left the judgment of conviction previous based on the and lawful proper judgment that could in no be avoided sense on collateral attack such as by corpus. habeas
When the proceedings had against person placed on a jury tried before a court of competent criminal jurisdiction, upon a valid indictment information, *5 which the defendant has been and to which he has arraigned pleaded joined otherwise issue under circumstances to are equivalent plea guilty, not such a judgment pursuant of conviction renderеd to verdict of guilty re- turned not jury subject case would be to trying collateral attack corpus on habeas void but judgment, as procedural be reversible on for some simply appeal error committed and as cause for a new trial assigned review in appellatе appellate procedure, jeop- due course tried, and where ardy attaches to the under such person so circumstances, a defendant has been indicted for and tried murder degree, but of murder convicted second degree, and the second conviсtion has been reversed for a new trial, because of a procedural error committed in the manner of selecting the trial jurors who found the verdict of of murder in guilty the second degree, it would amount to an unconstitutional deprivation under rights accused Section of the Bill of Rights to such again place on trial for murder in first degree, the verdict conviction of void, second degree murder but infected being simply with reversible error for which it be set aside slight due appellate complaint behalf.
This Court is committed to the doctrine that where a law, cоmpetent is under the impartial and is re- Constitution, quired tendered State and has been accepted accused as the trial him, that, issues of the accusation made against in the absence of duress or other improper influence tend- accused, is, ing injure the such verdict jury’s purposes if judgment against accused found guilty, legally support sufficient adjudicating guilt as well as the lawful sentence of the law that permitted is
916 adjudication. adverse imposed pursuant
to be to such short, valid against the verdict and resultant are attack, challenge even though ground collateral it, composing individuals jurors, or some array timely challenges had such would have sustained 289, State, 116 470 Rep. 95 Fla. Sou. v. Washington made. 599, Sup. 49 278 U. S. Ct. 474.); (certiorari denied (text same token a verdict of Ed. Rep. 528). L. By a case insures to in in such part acquittal whole effect. legal equivalent benefit of the with accused when а been duly We hold therefore defendant has that murder, re- degree tried an indictment charging murder, in a of second and the sulting degree conviction reversed at the instance Supreme conviction is Court tried him were of the defendant which because challenge array to а allowable subject proper legally jurors, sworn as trial were and they empanelled before tried subsequently such defendant cannot be indictment, murder contained of first charge degree and duly held to have been legally must be deemed and but charge, leaving acquitted degree such first charge stand the accused only which be em- may of homicide murder and lower degrees braced therein.
Mandamus in the nature of procendendo denied. J.,C. J., Whitfield, Buford, Terrell and concur. J. J., dissent. Brown, Ellis J.
Ellis, P. (dissenting).—The statement that the judg- J. ment reversed in the case Chance 155 South. that he Rep. “solely upon the ground had been tried an is somewhat illegal jury,”, confusing in light point controversy, which is until person is he is confronted placed jeopardy constituted which legally has been with the de- charged 244; liverance accused. See C. 8 R. C. L. 139. “tried,” A person acсused of crime *7 within is the legal acceptance of by twelve term, who persons have assembled without of law authority and sworn to the evidence, accused because a according a in crim- inal case where the accused felony is with charged means a jury where been legally impaneled and sworn to try the issue joined between the and the State accused accord- to ing the evidence. That never happened in this case.
The accused protested to the court against the impaneling of the twelve persons brоught the before court to serve in the capacity jurors because he said the method their unlawful, selection was therefore the bringing of the men together perform to jury service the case was of no more legal than if efficiency they had chance by appeared the court room and were required to take their seats in the box for jury duty. jury Court,
This in considering question brought by here in protest accused a judgment resting upon the decision of the said so-called that the motion jury, of the accused the venire under which quash persons were into brought court serve as should have been granted and appropriate orders made the proper prep- aration of jury lists by County Commissioners in strict compliance with the statutes. controlling
The order of the court was in the following words: “Re- versed for appropriatе proceedings.”
The was a nullity. There was legal no trial of administering the accused. The of the oath to the twelve persons who jury sat box did not make legal jurors At them. no time during after proceedings the plea of not a trial of was there accused guilty within the if the no to say tеrm. It is argument of that
meaning his the unlawful protest against not continued accused had have executed that the proceedings imprisonment accused, to say because that is by of legal a imparts quality of the accused that the consent jurisdic- a which had no court verity рroceedings is jury to a trial right proceedings. tion such terms of the with crime a person charged secured to of Rights. Sec. Bill Constitution. Rep. South. Cotton that the trial of an on a in abatement plea
Court held issue was a capital to an indictment for a offense of six denial trial. Such right proceeding of a a lack that is process of the due law demanded *8 Constitution. accused could not have waived in this case by
a than A jury persons. jury legal twelve within of less chosen as persons' duly of that terms consists meaning not law service. That was done in requires fоr that objection this would case. a waiver of Therefore have which jury impossible been waiver of was under the Constitution. objection
The fact in that the absence of an from him the so-called conviction would have been proves executed nothing except sоme cases there are miscarriages that justice which is not remarkable human in- any stitution.
It is stated in the majority opinion true as that doc- State that trine obtains this the conviction of a person of a grade lower of offense embraced higher offense acquittal with which he charged stands is an higher offense, grade but it is difficult to understand how that where there doctrine has been no con- applies legal case In any viction. case so-called conviction has been set on the attack aside accused. The entire proceеding verdict and including so-called judgment has been va- cated. How then can that which has been annulled be treated as valid the accused acquit charge on one and void as a conviction on the other or lesser offense.
I therefore think the should issue. writ (concurring specially).—I not go do so far Brown, conviction, hold if as' to it had that reversed aside, and set On face of the have nullity. record, trial, Ias court had original juris- viewed the diction and It evidence legal. extrinsic had list not been showed I up made as the law concur required. respects, other opinion reached Mr. conclusion Justice Ellis.