Idella Mims, Plaintiff in Error, vs. The State of Florida Defendant in Error, 42 Fla. 199

Carter, J. : Plaintiff in error was tried and convicted in the Criminal Court of Record of Duval County upon an information charging her with receiving and aiding in the concealment of stolen property, knowing same to have been stolen, and from the sentence imposed sued out this writ of error. The information was filed: June 27, 1899, plaintiff in error was arraigned and pleaded not guilty on the same day and the trial was had on the 29th.

The entries in the record proper show that on June 28th six jurors, naming them, were, “for reasons satisfactory to the court, excused from further jury duty at this term,” there being at the time fourteen jurors in attendance, and a special venire was directed to issue for “six good and lawful men to be summoned from the body of the county returnable instanter,” which was duly issued, served and returned the same day.

Before the trial, on the 29th, plaintiff in error moved to' quash this special venire on the ground that certain jurors, naming' those who had been excused on June 28, “were discharged on the second day of the term without the consent of the defendant and without the authority of law.” This motion was overruled. I. The first assignment of error is that the court erred in not granting the motion to quash the special venire issued and jurors summoned on the 28th day of June, 1899, and discharging six jurors who were drawn on the regular venire to serve for the week or term.

No proof was submitted in support of the motion to- quash the special venire, and neither the bill of exceptions nor the record entries show facts to sustain the ground upon which the motion was based, vis: that six jurors were discharged without the authority of law. On the contrary, the record entries show that the six jurors named were excused (not discharged) for reasons satisfactory to the court, but the reasons for excusing them are not stated either in the record entries or in the bill of exceptions.

Several of the jurors summoned on the special venire objected to, sat upon the jury which convicted plaintiff in error, but it does not appear that any objections were interposed to- any individual juror. In the case of John D. C. v State ex rel. Julia V. H., 16 Fla. 554, this court held that trial courts, in the exercise of sound judicial discretion, have the right to excuse a juror, although he may be qualified to serve, and that such an exercise of discretion is not error, even though objected to by the parties to- an action, and this statement of the law has been adhered to in subsequent cases. Ellis v.

State, 25 Fla. 702, 6 South. Rep. 768; Edwards v. State, 39 Fla. 753, 23 South. Rep. 537. As it is not made to appear to us that there was an abuse of the judge’s discretion, in excusing the six jurors, we must presume that they were properly excused (Edwards v. State, supra), and as it is not claimed that the special venire objected to was improperly issued, if the other jurors were properly excused, the first assignment of error must be overruled.

Plaintiff in error asks us to accept as proof of the grounds of objection stated in the motion to quash an affidavit made by her attorney and presented to the court below on the hearing of the motion for a new trial in support of the seventh ground of that motion which complained that the remarks of the judge mentioned in the affidavit were published in a newspaper, and read by the jury that tried plaintiff in error, which it was claimed had a tendency to influence them to render a verdict of guilty in this case.

No assignment of error is based upon this ground of the motion for a new trial and the affidavit was not used upon the hearing of the motion to quash the special venire — in fact it was not made until after the trial of the case. Even if we can properly consider the affidavit, it does not prove the grounds of the motion to. quash to be true. In substance, it alleges that on June 28, 1899 one Jasper N.

Tully was tried in the Criminal Court of Record of Duval county for assault With intent to murder; that the court instructed the jury that under the evidence they could find a verdict for assault with intent to commit murder, aggravated assault or simple assault; that said jury rendered a verdict of aggravated assault, and the judge before discharging them said to them “Gentlemen : It is the first time during my service that I have felt compelled to administer a rebuke to a jury, but you evidently did not hear the evidence in this case.

Your action is contrary to the evidence and can only be characterized as chicken-heartedness. The testimony shows that this was a clear case of assault with intent to. murder, and there is no. excuse for such a verdict. This, jury is discharged for the term;” and that thereupon said jury was then discharged by the judge.

The affidavit does not state the names of the jurors in the Tully case; it does not allege that the members of that jury were the same jurors that the record shows were excused on June 28, nor does the affidavit state that the jurors in the Tully case were in fact discharged for the term, nor show that the special venire issued June 28 was issued to supply deficiencies in the regular panel caused by its depletion in consequence of the discharg-e of the jurors in the Tully case.

All presumptions are in favor of the propriety of the rulings of the trial court; and the record before us, even with the affidavit referred to-, fails to show that the special venire objected to. was issued to supply a deficiency caused by the illegal dischargee of jurors regularly procured in accordance with the laws.

In passing upon this assignment we neither affirm nor deny the right of a judge to address to juries the remarks attributed to the judge in the affidavit quoted, nor the power to summarily discharge jurors for the term under the circumstances therein stated, and to supply their places by special veniries issued to the body of the county. If such powers do exist, however, they ought to be cautiously and sparingly exercised, under circumstances clearly demanding it, in the interest of public justice and to preserve and maintain the integrity of the court' as an instrument for administering justice in its purity.

Powers which enable a judgé to summarily discharge jurors regularly drawn or procured in the manner pointed out by the laws, because he may be dissatisfied with their findings upon matters, within their peculiar province, and to issue veniries giving an unlimited discretion to the executive officer to select others in their stead, are certainly of extraordinary character under our system, and there is danger that great abuses may arise; that the spirit and intent of our laws for procuring impartial jurors of approved integrity, fair character and sound judgment and intelligence may be wholly set at naught and that the independance of juries as triers of fact, so carefully guarded by the law, will gradually but surely be destroyed.

II. Plaintiff in error requested the court to instruct the jury that “the fact that the goods or money was found in the possession of the defendant is not sufficient alone to. sustain a. conviction, nor is the fact that the defendant denied having received the goods, or money sufficient alone to sustain a conviction.” This instruction could not have been without a misleading tendency on the minds of the jury, if it had been given.

The facts stated in the instruction, viz: that plaintiff in error was found in possession- of the stolen money and denied having received it from the alleged thief, were not the only facts relied upon by the State to prove guilt.

There were other very pertinent facts in evidence connected with the receipt of the money by plaintiff in error from the alleg'ed thief, and with the finding' of the money in her possession recently after it was stolen, and her conduct and declarations made at the time which, together with the facts mentioned in the charge, were sufficient to sustain a verdict of guilty but the existence of which were wholly ignored in the requested instruction.

It is proper to refuse instructions as misleading when they are based on the theory of a party as to facts in evidence, and ignore the legal effect 'of other facts, applicable to the relation and rights of the parties. Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 5 South. Rep. 714. The instruction was properly refused. III. The other assignments of error are that the court erred in refusing the grounds of the motion for a new trial which alleged that the verdict was contrary to the law, the evidence and the instructions of the court.

We are of the opinion that the evidence was sufficient to support the verdict, and that the verdict is not contrary to the evidence, the law or the instructions of the court. The judgment is affirmed.