GEORGE ZAPF, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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George Zapf was convicted of keeping a gambling house, but the Florida Supreme Court reversed and awarded a new trial due to fatal defects in the trial record, specifically the failure to show that the jury was sworn.
The record is fatally defective because it does not affirmatively show that the jury was sworn. The statement that jurors were impaneled is insufficient; impaneling merely means making a list of those selected and does not imply swearing. The court also noted the record's failure to clearly show the defendant's presence at trial and the inadequate record-keeping generally.
“The record is fatally defective in not showing that the jury were sworn. There is such a recital in the bill of exceptions, but that does not cure the defect. The fact of the jury being sworn should appear of record.”
Establishes the fundamental requirement that jury oaths must be affirmatively shown in the trial record itself, not merely in collateral documents.
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Join FLexlaw to unlock all legal intelligenceGeorge Zapf was indicted and convicted of keeping a gambling house. The trial record shows only that a jury was 'impaneled' to try the case, with name…
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Liddon, J.:
The plaintiff in error was indicted and convicted of the crime of keeping a gambling house. Numerous errors are assigned, but a vital one occurring at the beginning of the trial, those subsequently appearing-are not open for discussion. The only entry in the record as to the calling of a jury in the case is as follows: “The State of Florida vs. George Zapf, indicted for keeping a gambling house. The following jury were impaneled to try this cause” (names of jurors here follow).
The record is fatally defective in not showing that the jury were sworn. There is such a recital in the bill of exceptions, but that does not cure the defect. The fact of the jury being sworn should appear of record. Brown vs. State, 29 Fla. 543, text 546, 10 South. Rep.
736. The statement that the jury was impaneled is not sufficient. There is no inference that the jury was sworn from the use of the word impaneled. Lyman vs. People, 7 Ill. App.
345. Impaneling has nothing to do with drawing, selecting or swearing jurors, but means simply making the list of those who have been selected. Black’s Law Dictionary, Title Impanel, citing Porter vs. People ex rel. Cass, 7 How. Pr. 441, 6 Am. and Eng. Ency. of Law, p. 635; State vs. Potter, 18 Conn. 166, text 175, citing-ancient English authorities.
What has been said disposes of the case. Another assignment of error is made that the record does not .show that the defendant was present at his trial. This being a case of felony, such presence was necessary. 'Revised Statutes of Florida, § 2906. Without determining whether this assignment is or is not well taken, Ave desire to state that the record in this respect, and in all others, is extremely defective. The trial of this case below was a very remarkable proceeding, or the record gives a very incorrect account of it. We are inclined to believe the latter alternative. Upon future trials there should be more skill and care in keeping the record. The actual personal presence of the defendant at the trial should be made clearly to appear. If evidence was submitted to the jury, the record should state that fact.
The judgment of the court below is reversed and a new trial awarded.
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Citator
Cited By
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State of Fla. Ex rel. Cashie Lee Green v. Pearson, 153 Fla. 314 (Fla. 1943)…o appear and present themselves for jury duty at a time and place designated in the notice. See Secs. 40.22, 40.23, F.S. 1941. Impaneling is the act of making the list of those who have been regularly drawn from the box for jury duty, Zapf v. State, 35 Fla. 210, 17 So. 225, and has nothing to do with selecting and listing “the number of male inhabitants of [a] county as provided by law, known or believed to be qualified under .the laws of Florida to be jurors.” Chapter 21527, supra. It is true that all th…
Authorities Cited
- Brown v. State, 29 Fla. 543 (Fla. 1892)