42 Fla. 244 | Fla. | 1900
The plaintiff in error, defendant below, was indicted at the Fall term, 1898, of the Circuit Court for Jackson county for murder, was tried at the Spring- term,
The indictment is as follows: “The grand jurors of the State of Florida, inquiring in and for the body of the county of Jackson, upon their oaths do present that one Raymond West, late of the county of Jackson aforesaid, in the Circuit and State aforesaid, on the sixth day of November, in the year of our Lord, one thousand eight hundred and ninety-eight, with force and arms at and in the county of Jackson aforesaid, then and there being, did then and there without authority of law, of his malice aforethought, and from a premeditated design to effect the death of a human being, to-wit: one Sol Dozier, an assault did make in and upon the said Sol Dozier with a certain deadly weapon, to-wit: a gun, then and there charged with gunpowder and certain leaden balls, which said gun charged and loaded as aforesaid he the safd Raymond West then and there in his hand had and held at and against the said Sol Dozier, then and there without authority of law, of his malice aforethought and from a premeditated design to effect the death of the said Sol Dozier, did shoot off and discharge ; and that the said Raymond West with the leaden balls aforesaid, by means of shooting off and discharging said gun so loaded, at, towards and against the said Sol Dozier, did then and there without authority of law, of his malice aforethought and from a premeditated design to effect the death of the said Sol Dozier, strike, penetrate and wound the said Sol Dozier in and upon the belly near the navel, and also in and upon the right arm of him the said Sol Dozier then and there, without authority of law, of his malice aforethought, and from a premeditated design to effect the death of the said Sol
The defendant before arraignment moved to quash this indictment upon the ground that it is vague, indefinite and uncertain, and does not charge the commission of the homicidal act to have been with malice aforethought and from premeditated design to effect death. This motion was overruled and such ruling is assigned as error. Under this assignment the point urged here against the indictment is that it fails to allege that the infliction of the mortal wound was “with a premeditated design to effect death.” This contention is without merit. The indictment after alleging an assault by the defendant upon the deceased with a loaded gun, from a premeditated design to effect the death of the deceased, then alleges that the shooting and discharge of the gun at and against the deceased was done with such design, and then alleges “that the said Raymond West with the leaden balls aforesaid, by means of shooting off and discharging said gun so loaded at, towards and against the said Sol Dozier, did then and there without authority of
After a full panel of twelve jurors had been selected and sworn in chief in the cause, but before any evidence was introduced, one of such jurors, J. D. Hartsfield, became ill and was excused by the court with the consent of the State Attorney, the defendant making no objection, and the court directed the place of the excused jur- or to be filled from special veniremen. In the selection of this twelfth juror the defendant exhausted the three peremptory challenges that remained to him after the selection of the first twelve jurors chosen, when, after such exhaustion, a venireman, one John Nichols, was called and tendered by the State, the defendant challenged him peremptorily, claiming that “he was entitled to the full number of ten peremptory challenges in the selection of such new jury, but the judge refused to al
3rd. The court erred in not granting the defendant ten new challenges in the selection of another juror after the court had excused the juror Hartsfield.
4th. The court erred in not granting the defendant ten new challenges in the selection of another juror in the place of the excused (J. D. Hartsfield) by the court, and after the defendant’s ten original challenges had been exhausted.
5th. The court erred in not allowing the peremptory challenge of defendant to. the juror John Nichols.
6th. The court erred in permitting the juror John Nichols to sit and try the defendant for murder after the defendant had objected to him.
As to the excusing of the juror after he had been sworn upon his falling ill, we might decline to consider this assignment because no objection or exception was taken to it at the time, but the rule is well-settled that upon a juror becoming incapacitated by illness from continuing his service as such, the court has a right to excuse him, and to declare a mistrial, should such event occur after the jury is sworn in chief. See authorities post.
The pith of the third, fourth, fifth and sixth assignments is that the court upon excusing the sick juror from the completed and sworn panel of twelve, erred in
Various witnesses were permitted, over objection by the defendant, to testify to the killing by the defendant of another party, one Howard Sampson, immediately before the shooting by him of the deceased in this case, and this ruling is assigned as error. The objection urged against this evidence is that the defendant was not on trial for the killing of such third party. Under the facts in this case this evidence was properly admitted. The facts in the case tended to prove that robbery was the motive for the killing of Sol Dozier'who was a guest at the house of Howard Sampson; that a fair had been held at such house on the night of the homicide, and that defendant was present during such'fair, and at its close, and witnessed the counting of the money taken in thereat; that he went off for a few minutes, returned with a gun and wearing a disguise and meeting Howard Sampson just outside of the house shot and killed him, and then immediately entered the house and shot the deceased, leaving none remaining except some females from whom he took the proceeds of the fair. The testi
Some of the court’s charges are assigned as error. In view of the reversal of the judgment, it becomes unnecessary for us to consider them, inasmuch as upon a new trial the judge below can rectify any errors or omissions therein, if any; and, besides, the evidence on such new trial may be so different as to necessitate the entire reframing of the court’s charge.
For the error found, the judgment of the Circuit Court is reversed and a new trial ordered.