Gladden v. State (12 Fla. 562, 1868)

"WESTCOTT, J.,

delivered the opinion of the court:

Silas Gladden, the plaintiff in error, was indicted for the murder of Addison Fullerton at the spring term, 1868, of the circuit court for Jackson county.

As the case is decided for the most part upon purely legal grounds, we deem any lengthy statement of the facts unnecessary.

From a careful inspection of the first page of the record we find that only fourteen persons “ were drawn to serve as grand jurors during the term ” at which the indictment was found. The statutes regulating the organization of grand juries cannot, by any known rule of construction, be held to authorize this, and while no such error is assigned by the plaintiff, yet it is apparent upon the record, an<| this being a capital case the court cannot pass it by without notice. No man should be tried for a capital crime upon an indictment of this character. Otherwise, not being assigned as error, and not mentioned in argument, it would be proper to pass it by.

There must be fifteen grand jurors on the panel as originally drawn. 17th Ohio, 224; 5 Eng., 71; 1 Blackf., 320.

This is an error which reaches all subsequent proceedings, and we might well dispose of the case upon that ground; but some of the errors assigned raising important questions of criminal law and practice we deem it proper to notice them.

On the first page of the record the following entry appears:

“ The grand jury came into court and reported that they, by their foreman, had excused .1 ohn W. King, one of their number, from attendance on grand jury on yesterday, before any investigation was had before them.”

Plaintiff in error viewing this action of the^rand jury such as vitiated all of their subsequent proceedings, plead in abatement at the proper time, that “ during the term of said court one of the jurors was excused by that body from serving on said jury, and did not serve as a grand juror during the term of the court at which the bill of indictment was found.”

Upon demurrer to this plea, this question arose, viz.:

Whether, after the legal organization of a grand jury, the absence-of one of its members, by permission of that body, from its consultations, and his failure to act with the others In finding a bill of indictment, is a good plea in abatement. The judgment of the court sustaining the demurrer is the first error hero assigned.

It is insisted for the plaintiff in error that “ the grand jury as a body could exercise no judicial powers, and could not adjudicate a3 to the qualifications of any of their number,” and that this was a judicial act.

Without passing upon this question, it is evident that the act of excusing a juror, whether by the court ortho grand jury, even though improper and for insufficient cause, cannot vitiate their subsequent action if his presence was unnecessary. The practice of excusing grand jurors from attendance is one which should not be encouraged, but at the same time we cannot see that the absence of one grand juror, however improperly, permitted, vitiates their proceedings if the requisite number necessary at common law to find a true bill remain.

In Alabama a grand jury legally constituted of thirteen members under the statute, is competent to act, although it may be subsequently reduced by the absence of one juror to twelve. 3d Ala., 343.

In Indiana, by statute, the names of eighteen men are to be drawn from the box for the purpose of being summoned as grand jurors. The grand jury, however, when convened may consist of any smaller number not less than twelve, as at common law. 1st Black., 317.

In North Carolina it is held that the statute upon the subject of a grand jury is only directory to the court, and does not declare void a bill or presentment found by a grand jury consisting of the common law number. 2 Ired., 153.

So in Tennessee the acts upon this subject were held to be only directory as to the number beyond which jurors shall not be sworn upon the grand jury, and the number twelve will constitute a sufficient number to act. 3d Humph., 49.

In Iowa the statute providing for the organization of a grand jury is held by the courts to be mandatory and peremptory. It provides that “ when grand jurors are to be selected their number must be fifteen, and they shall serve for one entire year thereafter.” Here it was held that the whole number must act. 3d Green, Iowa, 515.

It was held in Portis vs. The State, 28 Miss., 583, that if after a grand juror has been irregularly discharged a sufficient number to constitute a legal grand jury remain, the body will preserve its organization, and its acts will be valid, provided no substitute be sworn in.

The statutes of this State regulating the subject do nothing more than simply provide for the mode and manner of the organization of a grand jury and the number of which it is to be composed. After an-organization in conformity to the statute, the common law rule applicable should control, which is, “That every indictment and presentment by the grand jury must bo found by twelve at least, but it is not necessary that all above that number should concur in such presentment or indictment.” 3 Bac. Ab., par. 725.

In this case, whether the act of the grand jury in discharging one of its number be propier or not, it does not follow that the grand jury were rendered illegal.

After the discharge of the grand juror a sufficient number remained to constitute a legal grand jury, and if there had been originally fifteen grand jurors on the panel no such consequence would have resulted.

The judgment of the court sustaining the demurrer was correct, and there was no good plea in abatement.

The next error assigned is the refusal of the court to grant a continuance upon a motion based upon an affidavit containing the following grounds for the motion:

“ That defendant cannot safely go to trial at this term of the court on account of the absence