FORREST LAKE, PLAINTIFF IN ERROR,
v.
STATE OF FLORIDA, DEFENDANT IN ERROR
On Petition for Rehearing.
— Forest Lake the plaintiff in error', was indicted in Seminole County in September 1927 for the misapplication of the money, funds and credits of Seminole County Bank. He was tried, convicted and sentenced to a term of four years in the state penitentiary and now seeks reversal of that judgment on writ of error.
Prior to arraignment the plaintiff in error filed his plea in abatement to the indictment which was demurred to by the state and the said demurrer sustained. The order of the trial court sustaining’ this demurrer is the basis for the first assignment of error.
A plea in abatement is a plea of privilege and seeks to overthrow the action for the present but does not preclude a new action properly taken. It must in both civil and criminal cases be pleaded before any plea in bar or to the merits is tendered except in cases where the matter on which it is predicated arises and comes to the knowledge of the pleader after trial has commenced. Ricker v. Scofield, 28 Ill. App. 32. The greatest accuracy and precision are required in pleas in abatement, they must leave nothing to be supplied by intendment and they must be free from ambiguity and uncertainty. . Merely setting up a series of irregularities wili not support them. Reeves v. *369State, 29 Fla. 527, 10 So. R. 901; Oglesby v. State, 83 Fla. 132, 90 So. R. 825; Morry v. State, 72 Fla. 45, 72 So. R. 490. A plea in abatement may challenge matter on the face of or dehors the rec'ord and any objection to the legality of grand jurors must be raised by plea in abatement to the indictment before pleading in bar. Lake v. State, Indictment Number Nine, and cases there cited, filed this date.
In the case at bar the plea in abatement embraces eleven grounds or pleas all of which are directed to alleged illegalities and irregularities in drawing the jury list and in selecting the grand jury as required by Section 2772 Eev. Gen. Stats, of 1920 (Section 4444 Comp. Gen. Laws of 1927) and Section 2776 Eev. Gen. Stats, of 1920 (Section 4453 Comp. Gen. Laws of 1927). We have examined the basis for the predication of each of the said pleas and there appears to have been little or ño attempt at'a compliance with the law in the matter of selecting, drawing, recording, and approving the jury list as drawn in January 1927 from which the grand jury was drawn that initiated the indictment in question. The statute as above cited in clear and definite terms points out the duty of county officers in the matter of selecting, qualifying, approving, transcribing, and preserving jury list and failure to comply accurately or substantially with these requirements will vitiate any jury or grand jury drawn therefrom when •objection is seasonably taken thereto.
The jury list being illegal, it follows that the grand jury was in the same category, so the plea in abatement to the indictment having been properly taken should have been sustained and the indictment quashed. This being our judgment it becomes unnecessary to discuss other assignments presented.
*370Reversed on rehearing.
Terrell, C. J., and Whitfield, Ellis, Strum, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Custer v. State, 159 Fla. 574 (Fla. 1947)…to the selection, summoning, and empaneling of jurors, are proper grounds of objection to the jury, and from grounds of challenge to the array. Whartons Am. Crim. Law, 3d ed., 945, and 1,041, and authorities cited.” In Lake v. State, 100 Fla. 367, 129 So. 834, we said: “In the case at bar the plea in abatement embraces eleven grounds or pleas, all of which are directed to alleged illegalities and irregularities in drawing the jury list and in selecting the grand jury as required by Section 2772 Rev. Gen…
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Hysler v. State, 136 Fla. 563 (Fla. 1939)…gree guilty of a substantive felony and if it be the principal in the second degree it makes no difference whether the principal in the first degree has been convicted or not, or whether he is amenable to justice or not. Lake v. State, 100 Fla. 367, 129 So. 834; McCall v. State, 120 Fla. 707, 163 So. 38; In re Vann, opinion filed January 14, 1939. I have examined the cases relied on by petitioner, Kelley v. State, 79 Fla. 182, 83 So. 909; Flynn v. State, 86 Fla. 467, 98 So. 76; State, ex rel. Mauldin, v.…
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Chance v. State, 115 Fla. 379 (Fla. 1934)…ified persons for jury duty; and failure to substantially comply with the requirements of the statute may be ground for adjudging a venire or panel of jurors-to be invalid upon appropriate procedure duly taken. Lake v. State, 100 Fla. 367, text 369, 129 So. 834. [*381] The county commissioners who are authorized to make ■selections of qualified persons for jury duty “cannot delegate that duty to any other person, but must, themselves make the selection, and they cannot by subsequently ratifying a selection…
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
- Morey v. State, 72 Fla. 45 (Fla. 1916)
- Reeves v. State, 29 Fla. 527 (Fla. 1892)
- Oglesby v. State, 83 Fla. 132 (Fla. 1922)