Mary Ann Keech, alias Mary Ann Newton, Appellant, vs. State of Florida, Appellee, 15 Fla. 591

RANDALL, C. J., delivered the opinion of the court. The plaintiff in error was indicted in October, 1875, in St. Johns county, as an accessory to the murder of one Ellen "Wells, by William Newton, 'who was indicted'for the mhr- ' der as á principal. I.

The accused pleaded in abatement to ’the indictment that the certificate of the chairman of the County Commissioners was not recorded by the clerk, together with the list of person's selected as qualified'to be jurors for the year 1875'; and, further, that the said list contained the names of ,301 persons instead of .300, 'and thht said list shdws that many names were erased therefrom,' and Others substituted in their stead. The evidence being produced to the court it was decided that the said plea, was’not sustained, and this is alleged as error.

" . ' ' 1 ' • ■ In support of the first ground that the certificate of the chairman of the Board of County Commissioners was not recorded with the list of names, counsel refér to the 'third .

section of, ch. 1628, Laws of 1868, .which provides that the “ list, certified and signed by‘the''chairman'of the Board, 1 shall be' forthwith delivered to'the clerk, and by'him recorded in the minutes.” „ It is be recorded except the list,of'names'; the' authority of the clerk for recording it.-feeing the certificate. The object of recording it is to. preserve upon'the recprds'thé 'list of names, and for the information and convenience of the court.

It not very clear that tfee law' réqiiifes’ that hnyfhins can scarcely be said that the omission of the' clerk to record the certificate, or even the list,, is an irregularity in respect to ihé sélection, summoning or’empaneling of jurors. If the clerk neglects to perform such duty as directed.by the statute, .the court may require and compel him to do it,at kny time, ‘ and'thus_ the omission is.'chfqd."' cahnoti'-be prejudiced by it.

If the list is, in fact, certified to the clerk, he is required to write the names on separate slips of paper, and deposit them in a box from which the juries are drawn, and it can m.ake no difference to the accused that the list or certificate is not recorded until after the ballots are thus prepared or the jury drawn.

As to the plea that there were 301 names instead of 300, it appeared that some names had been erased and others substituted before the list was brought to the clerk, and that 300 only remained ; and it did not appear that any change had been made after the Board had completed the selection, and the presumption is that the erasures and interlineations were made by the Board, especially as it was not-. claimed that the' list had been changed after it left their hands. As the evidence showed that the names remaining did not exceed 300, there was no error- committed by the court in denying the plea. . II.

The accused moved to quash the special venire for grand jurors upon the ground that the names of more than fifteen persons were drawn and summoned, and also moved to quash the indictment upon the ground that sixteen peiv sons were sworn, and officiated as grand jurors in the finding of the same.

Section five of

an act relating to jurors (ch. 1628 above cited) provided that the clerk, thirty days before the sitting of the court, should draw from the box the names of not less than eighteen, and not more than twenty-three persons, to serve, as grand jurors.

Section nine- says “ there shall not be more than twenty-three, nor less .than sixteen persons sworn on any grand jury.” By “ an áct to amend

section five of

chapter 1628, Laws of Florida, red,ucingthe number of-grand and petit jurors,” approved Feb. 20, 1875, the fifth section' was' amended by providing that the clerk should1 “ ¿ráw from-thé box the names 'Of-not-less than-twelve; nor-in ore than fifteen persons, to serve as'grarid -jurors at !said court;”’ The Legislature, however, omitted to expressly repeal or amend' the ninth section. ' ' " In construing statutes which seeih to ’conflict," the rule is well established that the later statute' will prevail with reference to the subject matter of both, and if the two cannot ' stand together, the former will- be deemed to be repealed by implication, in order to advance the remedy evidently intended to' be accomplished bv the Legislature; and in looting for the intent it has been sometimes necessary to observe the title to

an act.' This is peculiarly so under the present constitution, which, like many of the-constitutions Of the new States, and recent changes in some of the older, provides that,

an act of the Legislature “ shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed ini the title.” The title of the amending act under consideration evidently shows that the purpose of the Legislature was to “reduce the number of grand jurors,” by providing that not more than fifteen should be drawn and summoned,1 instead of twenty-three as the law then stood. If

section nine is permitted to stand, wé have then a law providing for the drawing and summoning of fifteen, and then after-the court convenes, a special venire must be issued to make up the deficiency. One of. the safe-guards against, -abuseqin the construction of juries is in the publicity, fairness and deliberation required by law, the responsibility for a proper select tion being thrown upon public officers who’ are supposed-to. be responsible to the law and to the public.

The selection and the drawing were to be public and to become of-record, subject to the inspection of the public, in order/ among other things, that any improper or irregular practice or . conduct should be criticised and -detected. The law, i.tis.-true,provides that the sheriff shall “ r'eturn fforthwith'Sueh farther number of grand jurors.as may be.-required ”to supply.any deficiency, whenever those duly summoned failed to .appear, or when those duly drawn could not be found.

But it never ' was the policy of the Legislature to provide that a portion •of the grand jury should be selected by the impartial mode •of drawing by ballot, and another portion left to the selection of the sheriff upon his own judgment. Tet this would be the inevitable result if the ninth

section were allowed to stand — a deficiency would always, exist by positive enactment.' It is not believed that the Legislature, intended that there should be always a deficiency.

In providing that “ not more than fifteen persons ” should be drawn to serve as grand jurors, it was not intended that if the fifteen were summoned and appeared, there would yet be a “ deficiency,” because, if all who are allowed to be summoned are called and appear, no deficiency is contemplated, unless it appears to have been the policy of the Legislature to place the construction of the grand jury practically in the 'hands of a single person (the sheriff) by allowing him, in all cases, to select eight of them. This, instead of advancing the remedy, would advance the evil.

We do not think that if the fifteen duly drawn are summoned and appear, there is any “ deficiency ” to be supplied, the deficiency contemplated under the law as it stood, having reference to the failure to summon some of those named in the venire, or the failure to appear of a sufficient number of those drawn and summoned in the manner provided to compose the jury. The title of the amending act is adopted by the Legislature itself in pursuance of its -law making power, and as has been intimated it necessarily expresses, by force of the constitution, the intention of the enactment.

That intent, so plainly expressed as in this instance, leaves nothing to inference. It was to reduce the number of jurors below the number required by the existing law, and it becomes meaningless and powerless if the ninth

section can survive. As we believe it was contrary to the policy of the law as well as contrary to the express intention to allow it to stand, it must be held that any part of the former law which stands in the way of the reduction is necessarily repealed. Any other conclusion would defeat altogether the plain import of the act last passed, and deprive it of any and all effect as to grand juries. The special venire, therefore, calling for more than a ■ number sufficient to make a -grand jury of fifteen.persons, and the indictment found by sixteen persons sworn as a grand jury, should be quashed.

Eor the purposes of this case, it is, perhaps, not necessary to consider any of the remaining errors assigned, yet as they are important as questions of practice we-will notice some of them. III. The third error assigned is, that the court overruled the motion to quash the second count of the indictment. The first count charges, first, that William Newton murdered Ellen Wells, and, second, that the accused Mary Ann Keech, alias, Mary Ann Newton, at, &c., in. the State of Florida, was accessory thereto before the fact, and did counsel, hire and procure the said William Newton to commit the murder.

The second count omits to allege the fact of the murder by William Newton, in express words, but charges that Mary Ann Keech, on, &c., in the State of Wisconsin, did aid the said William Newton by hiring, &c., the commission of the murder of Newton “ in manner and form aforesaid,” referring to the allegation of the murder as stated in the ■ first count.

The use of “ counts ” or different forms of charging the offense in one indictment is allowed in practice, but it is not • proper in subsequent counts to omit any of the averments necessary to a complete statement of the offense. (Bishop’s Criminal Procedure, §§ 182, 185 ; State vs. Langley, 10 Ind. 484.) It is allowed, however, in a second count to refer to persons named in the first count, as “ the said A. B.,” “the said wife,” &c., thus pointing to the same person named in the first. (Bish. Cr.

Pros. §187 and cases cited.) But the only safe rule is to state the offense and the names of persons and places1 in each, count, in all cases where it is -deemed necessary to employ more than one statement of. the offense. IY.

The fourth error assigned is that the court directed the sheriff to summon, “from-the bystanders or from the county at large,” a juror to complete the panel, there being a deficiency by reason that the “ venire was exhausted before the panel was filled.” It does not appear by the record that a sufficient number to* make a jury was not summoned, but that the venire was exhausted and a sufficient number had not been obtained.

The'point of the exception, then, is, that the Judge directed the selection to1 be made in the language -of the statute, “ from the bystanders or from the county at large,’.’ instead of a direction to summon the requisite juror from bystanders only, or from the county at large only. As the statute give's a discretion to the court in the matter we cannot discover that an error was committed in putting the order in the alternative form ; and even if it were deemed an irregularity it-is -not one which we conceive could work an injury to the accused. . . Y.

The fifth error alleged is, that after the jury had beenempanneled and sworn, but before any evidence had been introduced, one of the jurors was discovered to be an alien, who had taken no. step to become naturalized ; whereupon he-wa'S'discharged and another person summoned and sworn in his stead. We-müst approve the fiction of. the court. By the Constitution, Article. IV.,

Section 23, an- alien.1 who had not1 taken the necessary oath in view of naturalization, is not a competent voter, and is expressly prohibited from being a juror.. In Tennessee a verdict was sustained where a minor was withdrawn, from the jury after Being selected, and before he was sworn-, and another person substituted. (Hines vs. the State, 8 Humph., 597.) In Illinois it was held correct in a capital Case to'.strike off .a juryman after he was sworn on the ground that he was an alien. : .(Stone vs. State, 2 Scam., 326.) See, also, Com. vs.

McFadden, 11 Harris, Par. 12, where a person sworn on the- jury was found incompetent, from prejudice. ■ (Wharton’s Amer. Crim. Law, Sec. 590; Bishop’s Crim. Pro. Sec. 808, citing Tooel vs. Com.; 11 Leigh, 714; People vs. Damon, 13 Wend., 351; McGuire vs. State, 37 Mississippi, 369.) The practice in such cases is, if the jury has been sworn, to discharge an incompetent juror, and, after filling his place, to swear the entire panel anew. The case of the State vs. Madoil, 12 Fla. R., arose before the adoption of our present Constitution.

The objection to a person who is, by the express terms of the Constitution, prohibited from being a. juror, taken by the defendant or by the State before the trial had been entered upon by the production of any testimony, is one which the court could not ignore without great impropriety. Nor do we understand that the court in the case of Madoil held otherwise.

In the present case the objection to the juror was not merely a ground of challenge which the party may waive by declining to challenge, but it goes to the very foundation of the right of trial by a jury of the country, a trial by one’s peers, and the retention of the prohibited person upon the jury involved a violation of the Constitution of the State; and a new trial upon the verdict of a jury so constituted would be inevitablé if, in á criminal prosecution, the accused was convicted. VI.

The second error assigned is, that the court allowed William Newton, a witness, to be sworn on the part of the State, while the indictment showed that Newton was the principal in the felony charged and the accused, an accessory. ■ According to the English law, it was left to the judges in each particular case to determine whether' accessories and accomplices should be allowed to testify. But an accomplice •is not, as a question of law, disqualified, and even the principal is not disqualified as against an accomplice until convicted and sentenced as a felon. , (Roscoe’s Cr. Ev., 153, et seq; Wharton’s Amer. Crim.

Law, Sections 783-4.) “It.is not enough that a person may have committed an infamous crime, and that he may have confessed it.' These facts may serve to destroy his credibility before a court and jury, and may render his testimony of little avail in the estimation of the latter, who áre the exclusive judges of it; but the rules of law will not, on this account, authorize the court to exclude him from giving his testimony.” Sumter vs. the State, 11 Fla., 247.

And in several cases cited by the court, it'was held that a conviction upon the testimony of an accomplice was legal, though the accomplice was uncorroborated.

An act of March 15,1843„ (Thomp. Dig.- 335,) provides that “no person shall be deemed an incompetent witness by reason of having committed any crime unless he has been convicted thereof in this State,” and it follows that it is not within1 the discretion of the court, in this State, to admit or to reject the witness, for he is, by express statute, a competent witness. It was further objected to the competency of the witness, Newton, that he stood indicted for another felony, to-wit: an attempt to murder Henry Keech, and counsel cites authorities' under English law in support of the objection.

The statute, however, declares that he is a competent witness, notwithstanding he has been guilty of any crime until he has been “ convicted theereofso that, until a judgment of conviction has been pronounced, he may; be a witness, the jury being the proper tribunal to judge of the value of liis testimony. YII. The ninth ground of error relates to the charge of the court to the jury.

The couirt charged as follows: “ In considering the credibility of a witness, it should be considered with reference to his truthfulness or the • reverse, and not to his character in other respects.” ■ We do not discover from the record whether an attempt '.was made to impeach; any of the witnesses, or whether this portion of the charge may have beén suggested-by comments made by counsel upon the character of witnesses.

As a general proposition, the rule, as given, is correct, according to the old books, though in some States inquiry is permitted into géneral character as a basis for ah opinion as to whether the witness should be believed on oath. (Wharton,

Section 814.) If this portion of the charge related to. the witness, Newton, it is not sufficiently full and explicit, for the credibility oí this witness depended not alone upon his: general veracity, but upon his connection with this case, his relation to the parties, his position as an accused party, .and his manner of giving his testimony, all which were necessarily before the, jury, and his credibility, in view of all these surroundings, was to be judged of by the jury.

It is alleged for error that the judge gave the jury the definition of murder in the first degree only, thus precluding them from considering the principal offense as of ¿ different degree. This is a mere hypothetical proposition of counsel.

The charge of the court, as given in the record, does not sustain the assignment, and this court has always refused to consider questions not embraced in the record. • ■ It is further alleged that the • court erred in omitting to instruct the .jury that “the law allowed them to add to their verdict a recommendation of mercy,” in view of the statute of 1872, which provides that when such recommend¿tion is made in cases' of murder, the penalty shall be imprisonment for life instead of hanging. • • r We know of no rule requiring the court to instruct the jury in regard to the punishment to be inflicted upon’criminals.

It would be .very proper for the court to instruct-the jury as to the existence of this law, in all capital cases, and it would undoubtedly be the duty of the court to do so if it were specially requested.. In this case we' find- no exception taken on account of the omission, nor any evidence that the court was so requested. ' " '' <Y' Mill. The twelfth ground of error is that because the accused was indicted a,s an accessory before the fact, and not. tor a.substantive ‘felony, the accused should have been,tried with, or after the. conviction of, the principal felon.

We have already said, that the second count of the indict-' rnent was not good. The first count charges the accused as an accessory, and it is expressly required by law that the accessory before the fact shall be tried either at the same time with the principal or after the conviction of the principal, unless the accused be indicted for a “substantive felony.” (See

Chapter XI,

Section 4, Criminal Code of 1868.) The record fails to show that the principal had been tried at the time the accused was tried, and, therefore, the trial of Mrs. ICeech, as an accessory, was premature. IX. It is also insisted that the indictment was defective, ■in that it does riot show upon what part of the body of the deceased the wound was inflicted. We believe it is uniformly held in the English books that the part of the body in which the deceased w'as wounded should be pai’ticularly stated. (2 Hawk. P.

C., Ch. 23, § 80.) The English common law in relation to crimes and misdemeanors, except as to the mode and degree of punishment, prevails here by express statute. The dimensions of the wound, if it be an incised wound, are required to be stated, according to most of the authorities. X.

As a thirteenth ground of error it is alleged that the jury came into court and rendered the following verdict: “We, the jury, find the prisoner Mary Ann ICeech, edicts Mary Ann Newton* guilty of' the charge, viz : Accessory before the fact to murder in the first degree.” Wherefore the court charged them that the form of the verdict should be “guilty” or “not guilty.” The jury then retired and brought in a verdict of “ guilty.” It is insisted that this is a special verdietj and is, therefore, not amendable as to matter of fact.

In the present ease, as the indictment charged the accused as an accessory before the fact, the alteration in the form- of the verdict was immaterial, and, therefore, the proceeding on the part of the court and jury was not erroneous. The verdict, however, as first brought in, 'showed that tiie offense, as found by the jury, was one which should not have been tried until the principal had been tried and convicted, or they should be tried together. XI.

Lastly, it is alleged that the court erred in omitting to ask the prisoner before pronouncing the sentence, whether she had anything to say why the sentence of death should not be pronounced upon her. It is laid down by Bishop (Cr. Pro. 1., § 865) that it is indispensably necessary that this ceremony should be observed in capital cases, and that it should appear of record that it was observed, and the authorities ■ cited sustain this conclusion. (4 Bl. Com. 370, 375, note 2; 4 Burr. 2086; 3 Mod. 265 ; Rex vs. Speke, 3 Salk. 358; Rex vs. Geary, 2 Salk. 630; West vs. the State, 2 Zabriskie, N. J. 212; Hamilton vs.

Com. 4 Harris, Pa. 129; Safford vs. People, 1 Parker C. C. 474; Dyson vs. the State, 26 Mississippi, 362; Crim vs. the State, 43 Ala. 53.) But although it may be sufficient ground for arresting or setting aside the judgment or sentence, it does not seem to be good ground for a new trial.

If, in a capital case, the court had omitted this traditional ceremony of asking the prisoner why the sentence of the law should not be pronounced, (material only because the prisoner is then and thereby informed that sentence is about to be pronounced, and that he may then urge any reason why the final judgment should not be entered,) the utmost that may be asked is, that the judgment be set aside and the prisoner remanded to the proper court to be dealt with according to law, the verdict standing unimpaired. The judgment is reversed and the case remanded to the Circuit Court for St.

Johns county, with directions that the indictment be quashed for the reasons herein stated.