Kelly v. State

Citations

• 44 Fla. 441

Syllabus

<p>CRIMINAL LAW—PLEAS IN ABATEMENT OF INDICTMENT because' OF DEFECTS IN GRAND JURY—CHARGES MUST BE PREDICATED UPON PROOFS—MOTIONS IN ARREST OF JUDGMENT FROM PART OF RECORD PROPER.</p> <p>1. Pleas in abatement alleging defects in the drawing and empanelling of grand juries must be drawn with rigid strictness and certainty to every intent.</p> <p>2. A plea in abatement of an indictment returned by a grand' jury that attempts to allege illegality of such grand jury because of discrimination against negroes on the part of the county commissioners in the selection of the jury lists from which it was drawn, that fails to allege that there were any negroes In the county at the time the list was' selected from which the grand jury was drawn, that found the indictment who were possessed of all the statutory qualifications of jurors, and that fails to allege that there were any negroes in said county who were possessed of the statutory qualifications of “sound judgment;” and that fails to allege that the county commissioners knew, or had good reason to believe, at the time they selected such jury list, that there were negroes in such county possessed of the statutory qualifications of approved integrity, fair character, sound judgment and intelligence, does not meet the requisite strictness and certainty applicable to such pleas, and is bad on demurrer.</p> <p>3. The rule is that charges must be predicated upon the facts in proof, and it would be error to charge upon a hypothesized state of facts that had no foundation In the proofs.</p> <p>4. If a defendant on trial for murder desires a special instruction as to the form of a verdict of acquittal he should request it to be given, otherwise he can not complain of the court’s failure to so charge, as it is not generally necessary to instruct specially as- to the form of a verdict of acquittal.</p> <p>E. Motions in arrest of judgment form part of the record proper, and when evidenced te ap. appellate court only in and by a bill