We find ourselves unable to concur in the opinion prepared by Mr. Justice ADAMS when the case was referred to him to write and which opinion will be filed as a dissenting opinion.
Mr. Justice ADAMS has stated certain salient facts which we shall not repeat here.
We are impelled to note the fact that in preparing brief the appellant has disregarded Rule 20 in many respects and especially that part of said Rule as to statement of questions involved. However, as we glean from the brief and record, a number of contentions were presented by the motion for new trial and by the assignments of error, only three of which we consider of sufficient merit to require treatment and discussion in this opinion.
The first of these challenges the legality of the venire from which the jury was drawn to try the defendant on the ground that the venire was summoned by the sheriff (and his deputies) from the body of the county under an order made and entered by the trial judge, directed to the sheriff to so summon such venire.
Sec. 40.19 Fla. Stats., 1941 (same F.S.A.) is as follows:
"Deficiency of Jurors to Try Any Cause. — Whenever it shall appear to the court that, by reason of challenges or otherwise, a sufficient number of jurors of those drawn and summoned cannot be obtained for the trial of any cause in *Page 599 the circuit court, criminal or county court, the court shall draw or cause to be drawn from the box, to be summoned a sufficient number of qualified jurors to complete the panel for the trial of such cause, provided, however, that in the eventthe names in the jury box should become exhausted during theterm of court, then the court may direct the sheriff to summonfrom the body of the county a sufficient number of qualifiedjurors to complete the panel for the trial of the cause." (Emphasis supplied).
There is nothing contained in this Section which required the circuit judge to wait until the trial of a cause shall have commenced before he shall be authorized to proceed under the provisions of this Section. As I construe the unambiguous language of the statute, it means that: "Whenever it shall appear to the court that, by reason of challenges or otherwise, a sufficient number of jurors of those drawn and summoned cannot be obtained for the trial of any cause in the circuit court, . . ., the court shall draw, or cause to be drawn from the box, to be summoned, a sufficient number of qualified jurors to complete the panel for the trial of such cause"; but if the names in the jury box become exhausted during the term of the court (that is what occurred before the beginning of the trial in the instant case) and it appears to the court that there is a cause pending to be tried which will require the procuring of additional jurors to complete a panel for the trial of such cause, then the court "may direct the sheriff to summon from the body of the county a sufficient number of qualified jurors to complete the panel for the trial of the cause."
Stated otherwise, the statute insofar as it applies here, is to be read as follows:
"Deficiency of Jurors to Try Any Cause. — Whenever it shall appear to the court that, by reason of challenges or otherwise, a sufficient number of jurors of those drawn and summoned cannot be obtained for the trial of any cause in the circuit court, criminal or county court, . . . in the event the names in the jury box should become exhausted during the term of the, court, then the court may direct the sheriff to summon from the body of the county a sufficient number of *Page 600 qualified jurors to complete the panel for the trial of the cause."
This language authorizes the trial judge to exercise his discretion and order a sufficient number of veniremen summoned from the body of the county (not to procure just a part of a panel) to complete a panel for the trial of such cause.
It is so elementary as to require no citation of authorities that the Legislature may prescribe the manner and means by which juries may be obtained in the several courts for the trial of such cases as may be brought on for trial in such courts and that unless it be made to appear that in following the method prescribed by the Legislature in this regard the result has been to deprive the accused of a fair and impartial trial, such procedure will be upheld, although the procedure prescribed by the Legislature may appear to the courts to be unwise.
It may be admitted that a safer and better practice would be to require all juries to be drawn from the jury box, but this is a matter which is within the control of the Legislature and the Legislature has deliberately and by clear language provided that when the names in the box shall become exhausted during the term of the court and it appears that additional jurors will be required for the trial of a cause at that term of court a sufficient venire may be ordered summoned from the body of the county to complete a panel of jurors for the trial of such cause and this may be done under the provisions of this Act whether or not there are some jurors (but not enough in the opinion of the trial judge to complete a panel) whose names were theretofore drawn from the box then in attendance and available to be called on the panel.
In the absence of clear showing to the contrary, we may not assume that the personnel of the venire summoned under order of court was not fairly and impartially summoned by the sheriff and his deputies duly authorized to act in the name and stead of the sheriff in this regard.
The record shows that the fair and impartial action of the sheriff and his deputies in this regard was challenged in *Page 601 the lower court and that thereupon the trial court made in open court exhaustive inquiry to ascertain whether or not such course had been pursued and, on the testimony adduced before him, found that such personnel had been fairly and impartially summoned.
It is well settled that the jury must be obtained in the manner prescribed by statute unless the accused waives compliance with the legislative requirements.
In this case the legislative, or statutory, requirements were complied with and it is not made to appear that the accused was thereby denied a fair and impartial trial. Therefore, we cannot hold that the trial court committed reversible error in this regard. The record shows that the verdict and judgment was amply supported by the evidence.
The second contention which we shall discuss challenges the action of the court in sustaining the objection of the State to testimony offered by accused as to threats on the ground that no overt act on the part of the deceased at the time of the homicide evincing an intent to kill or do great bodily harm to the accused had been shown.
We do not think this action of the court constituted a reversible error because the only act of the deceased at the time of the homicide upon which accused relied for his claim of self-defense is found in his testimony given after the ruling supra, as follows:
"Q. (Mr. Beall continuing) Mr. Bailey, did you see Mr. F.A. Toney on Monday the 26th of July on Harrison Avenue down here?
"A. Yes sir.
"Q. Whereabouts did you see him?
"A. I would say in front of Cogburn's Jewelry Company.
"Q. Where was he when you first saw him; what called your attention to the fact?
"A. He called me by name. He said 'Leo'; I whirled around; I was going South towards the Bay and I whirled around and I said yes, Mr. Toney, what is it, and he said "you son of a bitch I got plenty to tell you and he had his hand underneath his polo shirt.
"Q. What did he do with his hand? *Page 602
"A. By the time he got through speaking he moved his arm out.
"Q. Like he was going to do what?
"A. Like he was pulling a gun out; that was where he usually kept his gun.
"Q. That is where he usually kept his gun?
"A. Yes sir.
"Q. What did you do?
"A. Everything went black, it tore me to pieces and I went to shooting.
"Q. Did you think he was prepared to shoot you at that time?
"A. Yes sir.
"Q. Why did you believe he was going to shoot you?
"A. Because he threatened to blow my head off and threatened me over the telephone.
"Q. Had he made a threat to you?
"A. Yes sir.
"Q. When?
"A. Thursday night.
"Q. Prior to this time?
"A. Yes sir; 11:28 Thursday night.
"Q. How did he communicate it to you?
"A. He told me over the telephone he would kill me if I come out of the hotel.
"Q. You believed him?
"A. Yes sir, we talked over the telephone."
Thereafter accused testified regarding the alleged threat, which testimony was admitted without objection. The trial judge was not requested to instruct the jury that such evidence could be considered and therefore the absence of such instruction cannot be now complained of. See Sec. 918.10 (4) Fla. Statutes 1941, and LaBarbara v. State, 150 Fla. 675, 8 So.2d E 62; Simmons v. State, 151 Fla. 778, 10 So.2d 436.
The record, taken as a whole, shows clearly that the accused was the aggressor in the difficulty. This case is very much like that of Smith v. State, 25 Fla. 517, 6 So. 482. *Page 603
The other contention of the appellant challenges the adequacy of the charge or instructions given by the court to the jury after the close of the testimony.
We have carefully considered the instructions given and think such intructions were adequate and sufficient under the facts in this case and in the absence of charges requested, and in the absence of timely objection to the instructions as given. See statutes and cases above cited. No objection was registered by the accused to the charges as given. The only charge requested by the accused was as follows:
"The Court instructs you, Gentlemen of the Jury, that homicide is justifiable under the laws of the State of Florida, when it is committed in the lawful defense of the person committing it when there shall be reasonable ground to apprehend a design on the part of deceased to kill or do serious bodily harm to the person charged with a homicide and there shall be imminent danger of such design being accomplished.
"And you are instructed that the danger need not be actual nor the necessity to kill real, yet the circumstances surrounding, and as they appear to the slayer at the time he does take life must be such as would induce a reasonably cautious man to believe that the danger was actual, and the necessity real, in order the slayer may be justified in acting upon his own belief to that effect."
The giving of this charge was refused by the court "as being contained and given in the general charge." We find no error reflected in this ruling.
Other contentions made have been considered and are found to reflect no reversible error.
Therefore, the judgment should be affirmed and it is so ordered.
Affirmed.
TERRELL, THOMAS and SEBRING, JJ., concur.
CHAPMAN, C. J., BROWN and ADAMS, JJ., dissent.