Napoleon White, Plantiff in Error, vs. The State of Florida, Defendant in Error, 26 Fla. 602

Mitchell, J. The plaintiff in error was convicted at an adjourned term of the Circuit Court, January, 1890, for murdering his wife, Martha Ann White, by striking her on the head with a piece of iron gas pipe. The defendant moved for a new trial, which motion was overruled and he was sentenced to death, and the case comes here upon writ of error to the Circuit Court of Leon county from the order of the trial judge overruling said motion. There are only two errors assigned, the first being that the Court erred in sustaining the demurrer of the State to the defendant’s plea in abatement. 2.

The Court erred in overruling each and every ground alleged as error by defendant’s attorneys in motion for new trial.

The defendant in his plea, sets up that the indictment found against him “ ought not to be further prosecuted, because he says that the list of three hundred persons selected by the Board of County Commissioners to serve as j urors, for said year, (naming the year) in said county, certified to by the chairman of said board, was not recorded in the minutes of the Circuit Court for said county as required by law.” The plea was demurred to and the demurrer sustained, and it is contended that this was error, but the contention is not tenable.

The statute, act of March 11, 1879, McClellan’s Digest, 621, provides that “the Board of County Commissioners, at a meeting to be held the first week in January of each year, or as soon thereafter as practicable, shall select from the list of registered voters in their respective counties, and make out a list of three hundred persons, properly qualified to serve as jurors, who shall be such persons only as they know or have good reason to believe are of approved character, sound judgment and intelligence, which list, certified and signed by the chairman of the board, shall be forthwith delivered to the clerk, and by him recorded in the minutes.” The statute requires the list to be recorded in the minutes of the County Commissioners, but does not require it to be recorded in the minutes of the Circuit Court, as contended.

The presumption is, that the list was properly recorded by the clerk in the minutes of the County Commissioners, for if it was not, that question would' probably have been raised..

The grounds of the motion for new trial are: . 1. “ That the written instructions requested by the defence to be given to the jury, were given to the'jury without being signed or sealed by the judge as required by law, and the same was also defective for the reason that the judge did not declare in writing his ruling thereon as presented and pronounce the same to the jury as given or refused.” The defendant, as shown by his motion, had the benefit of the charge requested by him, and as there was no exception at the time to the failure of the judge to sign and seal the charge, or to pronounce the charge given or refused, the refusal to grant a new trial on said first ground was not erroneous.

Gibson vs. State, 16 Fla., 291; S. C. 7 Southern Reporter, 376; Southern Express Company vs. Van Meter, 17 Fla., 783; Potsdamer vs. State, 17 Fla., 895; Baker vs.

Chatfield, 23 Fla., 540. 2. “ That upon attorney for defence asking Starlin Hill, witness for the State, if he knew anything of the character of the deceased, the ruling of the judge was in the following language: ‘ I will not allow a man who has killed his wife to bring the character of his wife in question. ’ Which remark was calculated to prejudice the minds of the jury to the injury of the accused.” Now, such language, if used by the judge, would be erroneous, as it would be, as contended by counsel for the accused, calculated to prejudice the jury against the accused.

Such language, if used by the judge, assumed that it was proved that the accused had killed'his wife, but the record before us fails to show that the trial judge used the language imputed to him. It is true that the accused incorporated this language in his motion for new trial, but this was not sufficient—it proved nothing. The overruling of the motion negatived the use of such language. But if the judge did use such language, it was the duty of the accused, if he desired to avail himself of the same, to incorporate the language in a bill of exceptions, so that it might be reviewed by the Appellate Court.

McNealy and Roulhac vs. State, 17 Fla., 198. There is other language imputed to the trial judge, but what we have said above, applies to such other language also. We have given the whole case careful consideration so far as we could with the very imperfect record before us, and after doing so, find no cause for reversal, and, therefore, the judgment of the court below is affirmed.