AB PENTON, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Ab Penton was convicted of manslaughter in the death of George Allen and appealed, raising objections to jury selection procedures and an evidentiary ruling. The Florida Supreme Court affirmed the conviction, finding no substantial error in the trial court's use of a special venire from another case or its allowance of a leading question.
The court held that irregularities in jury selection not amounting to denial of a substantial right are not grounds for reversal when no injury to the defendant is shown, and that trial judges have discretion to permit leading questions which is not reviewable on writ of error.
“When no injury to the defendant has resulted therefrom an irregularity not amounting to the denial of a substantial right in the selection and empanelling of the jurors will not avail on objection and exception.”
Establishes the standard that jury selection irregularities are not reviewable absent showing of substantial injury or denial of substantial right
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Join FLexlaw to unlock all legal intelligenceFrank M. Penton and Ab Penton were jointly indicted for the murder of George Allen. Frank M. Penton was acquitted. Ab Penton was convicted of manslaug…
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Whitfield, C. J.
Frank M. Penton and Ab Penton were jointly indicted for the murder of George Allen. The former was acquitted; and the latter was convicted of manslaughter, and took writ of error. Several special venires were exhausted in securing a jury. Over the objection of the defendant the court directed that the special venire ordered in another case be used in this case. It does not appear that the special venire used over objection was not legally formed or that any of the jurors taken from it were improper jurors, or that the defendant exhausted his peremptory challenges, and was obliged to take an objectionable juror because he-.liad no further peremptory challenges.
An objection on the ground that it was leading was to any particular persons as jurors. When no injury to the defendant has resulted therefrom an irregularity not amounting to the denial of a substantial right in the selection and empanelling of the jurors will not avail on objection and exception. McRae v. State, 62 Fla. 74, 57 South. Rep. 348; Young v. State, 63 Fla. 55, 58 South. Rep. 188. There is nothing to indicate that the defendant was injured or that he has been denied a substantial right in the use of the special venire drawn for another case.
An objection on the ground that it was leading was overruled to the following question asked by the court: “Dr. Smith, did George Allen express the belief to you that he was going to die?” It is within the discretion of the trial Judge to permit leading questions, and stich discretion is not reviewable on writ of error. Anthony v. State, 44 Fla. 1, 32 South. Rep. 818; Johnson v. State and Padgett v. State, decided this term.
There is evidence to sustain the verdict, and no material errors of procedure that could reasonably have injuriously affected a substantial right of the defendant appear in the transcript.
The judgment is affirmed.
Taylor, Shackleford, Cockrell and Hocker, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Leavine v. State, 109 Fla. 447 (Fla. 1933)…s a right to reject, not a right to select. 1 Thompson on Trials (2 Ed.) Sec. 43; Melbourne v. State, 51 Fla. 69, 40 Sou. Rep. 189; Ammons v. State, 65 Fla. 166, 61 Sou. Rep. 496; McRae v. State, 62 Fla. 74, 57 Sou. Rep. 348; [*456] Penton v. State, 64 Fla. 411, 60 Sou. Rep. 343; Blackwell v. State, 101 Fla. 997, 132 Sou. Rep. 468. There is nothing in the record tending to show that in drawing the námes from the jury box of men to serve for the trial of the accused there was any irregularity or fraud save…
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Brown v. State, 108 So. 842 (Fla. 1926)…o. v. VanMeter, 17 Fla. 783; Camp v. State, 58 Fla. 12,50 South. Rep. 537; Wood v. State, 31 Fla. 221, text 224,12 South. Rep. 539; Johnson v. State, 64 Fla. 321,59 South. Rep. 894; Padgett v. State, 64 Fla. 389, 59 South. Rep. 946; Penton v. State, 64 Fla. 411, 60 South. Rep. 343; Stinson v. State, 76 Fla. 421, 80 South. Rep. 506. From what has been said then, there is no reversible error shown under the third assignment. In our consideration of the second and third assignments of error, we have also dis…
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Lindsay v. State, 69 Fla. 641 (Fla. 1915)…le jurors were selected after defendant’s challenges were exhausted, alleged errors in rulings on challenges for cause may be immaterial. An accused has a right to an impartial jury, but not to any particular persons as jurors.” See Penton v. State, 64 Fla. 411, 60 South. Rep. 343. There was no effort what [*645] ever on the part of the defendant to show that the Sheriff was disqualified by reason of his prejudice against the defendant to summon the two persons from the bystanders to serve as jurors save t…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anthony v. State, 44 Fla. 1 (Fla. 1902)
- M'Rae v. State, 62 Fla. 74 (Fla. 1911)
- Young v. State, 63 Fla. 55 (Fla. 1912)