DELMA HAYS, PLAINTIFF IN ERROR,
v.
STATE OF FLORIDA, DEFENDANT IN ERROR
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Delma Hays was convicted of manslaughter after being indicted for murder in the second degree and sentenced to a fine and penitentiary time. The Florida Supreme Court affirmed the conviction, rejecting challenges to the grand jury composition, the denial of a motion to quash the indictment, and the sufficiency of the evidence.
The court held that the record does not affirmatively show the jury list was deficient, the trial court properly exercised its discretion in refusing to permit withdrawal of the not guilty plea because the indictment was valid on its face, and the evidence was sufficient to support the manslaughter conviction.
“It was within the discretion of the trial court to permit the withdrawal of the plea of "not guilty" for the purpose of making a motion to quash the indictment.”
Establishes that the trial court had discretion in deciding whether to allow withdrawal of plea, and no error occurred in refusing it.
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Join FLexlaw to unlock all legal intelligenceHays was indicted for murder in the second degree. A trial jury found him guilty of the lesser-included offense of manslaughter, and he was sentenced …
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— Plaintiff in error was indicted for murder in the second degree and a trial resulted in a verdict and judgment for manslaughter. He was sentenced to pay a fine of three thousand dollars and in default thereof to be confined in the state penitentiary for ten years. Writ of error was taken to the judgment.
A plea in abatement was tendered to the indictment before going to trial. This plea was predicated on the allegation that the jury list from which the grand jury was drawn, that indicted plaintiff in error, contained only one hundred eight names when said list should have contained two hundred names. A demurrer to the plea in abatement *735was sustained and after hearing evidence on the issue made thereto the plea was denied. Exception was taken to both these orders and assignments made thereon but they were abandoned in this Court. The record does not affirmatively show that the jury list contained only one hundred eight names. If it did the plea would have been good under the rule announced in Lake v. State, decided July 29, 1930.
Other assignments are directed to the sufficiency of the evidence to support the verdict and the refusal of the trial court to permit the defendant to withdraw his plea of “not guilty” and interpose a motion to quash the indictment.
It was within the discretion of the trial court to permit the withdrawal of the plea of “not guilty” for the purpose of making a motion to quash the indictment. The indictment has been examined and found good as against a motion to quash so there was no error in refusing to allow the plea of “not guilty” to be withdrawn.
The evidence has been examined and is sufficient to support the verdict.
Affirmed.
■Whitfield, Strum and Buford, J. J., concur.
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Kaminski v. State, 72 So. 2d 400 (Fla. 1954)…that point to permit defendant to withdraw his plea and filed a motion to quash. Section 909.06, supra. Bryan v. State, 41 Fla. 643, 26 So. 1022; Haddock v. State, 141 Fla. 132, 192 So. 802; Shumake v. State, 90 Fla. 133, 105 So. 314; Hays v. State, 100 Fla. 734, 130 So. 6. See also Johnson v. State, 58 Fla. 68, 50 So. 529; 27 Am.Jur., Ind. and Inf., section 188, n. 14 and 15; 42 C.J. S., Indictments and Informations § 331. The only other question on the appeal is whether the evidence was sufficient to sus…
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Brannon v. State, 117 Fla. 164 (Fla. 1934)…ey may be summoned to attend again in the same term at such time as the court shall direct, for the dispatch of any business that may come before them.” There is no showing in the record that the allegations- of the plea are true. In Hays v. State, 100 Fla. 734, 130 Sou. 6, we said: “It is' not error to sustain a demurrer to a plea in abatement when the record fails to support affirmatively the allegations therein.” But, even if the record had affirmatively shown the condition which the allegations of th…