Gladden v. State

Citations

• 13 Fla. 623

Syllabus

<p>X. The act of the Legislature of 1868, relating to jurors, provides that the County Commissioners of each county shall make a list of 300 names of persons qualified to serve as jurors, from which list the grand andpetitj urors are to be drawn. The commissioners of Jackson county furnished a list to the clerk of 302 names, from which the grand and petit jury were drawn. Held, That this was an irregularity, forming a proper ground of challenge to the array of the petit jury.</p> <p>2. Where the whole number of any grand or petit jury are not summoned ■ it is the duty of the court to direct the clerk to draw a sufficient number, to complete the jury from the list furnished by the county commissioners in the same manner as provided by law for the drawing in the first instance, and to issue a venire for the summoning of the persons so drawn. (Sections 5 and 32, act of 1868, relating to jurors.)</p> <p>3. A special venire for talesmen to forma jury for the trial of a cause, when a sufficient number of jurors regularly drawn and summoned cannot be obtained by reason of challenge or otherwise, is proper, and the court may cause jurors to be summoned from the bystanders or from the county at large to complete the panel. Section 21, act of 1868.</p> <p>4. An application for a second continuance upon an affidavit which discloses the fact that the witnesses reside and are beyond the limits of the State, may be refused for that reason, and such refusal forms no ground for the granting of a new trial upon an appeal by this court.</p> <p>5. Where an affidavit for a continuance fails to show that the testimony of an absent witness is material, it forms no ground for a continuance.</p> <p>6. The circuit judge charged the jury, on the request of counsel for the State on the trial of an indictment for murder, that “ if the State proved ' a deliberate killing, not the mere fact of killing, then it was for the prisoner to prove that it was not murder, and if he has failed to do so, y