This appeal is from a conviction of murder and a sentence to death. A fair statement of the case, to base a discussion of the grounds of appeal, is as follows: *Page 604
On August 26, 1943, the grand jury of Bay County returned indictment against appellant, charging murder. On September 1, following, appellant plead not guilty and the case was set for trial on the 20th of the same month. On the 17th, three days before the trial, on motion of the State, the court ordered the sheriff to summon a special venire of one hundred jurors to serve in this case.
The reason for this was the names in the jury box had become exhausted. On the morning of the 20th and prior to the empaneling of the jury, appellant challenged the entire venire. This motion raises two questions of law and one of fact.
The first of law is, inasmuch as the names in the jury box became exhausted more than three days before the actual trial began should the court not have required the county commissioners to refill the jury box? The second question of law is, where the sheriff's deputies empowered to summon the special venire or was it a duty which could be exercised by the sheriff only?
The question of fact is the sheriff and his deputies were prejudiced against the accused and actually selected and chose veniremen with a purpose and intent to secure a conviction. On the latter question the presiding judge took testimony and decided in favor of the State. The first questions were also decided in favor of the State and the challenge denied.
On the question relating to the authority of the sheriff's deputies to summon the special venire we have no hesitancy in holding that the ruling of the court was free from error. Sec.30.07, F.S. '41, F.S.A., "Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, . . ."
The other question of law is one deserving great consideration. Appellant contends that the method of having the sheriff summon jurors from the body of the county can only be resorted to in order to complete a jury panel. The answer of the State is that while the argument is ingenious, it is supported by authority. The State also says that if appellant's contention is adopted the purpose of the statute, namely, to avoid delay, would be defeated. The State's idea of the purpose of the statute is questioned and will be discussed later. *Page 605 The State also claims that the trial judge exercised his discretion as to the manner of obtaining a jury and in so doing he was acting within the law and cites O'Conner v. State,9 Fla. 215; Ford v. State, 44 Fla. 421, 33 So. 301; Colson v. State, 51 Fla. 19, 40 So. 183; Johnson v. State, 54 Fla. 45, 44 So. 765.
We will now examine the statutes under which these cases were decided and the one now in force to ascertain whether they are controlling and whether the matter was such as to be a matter of discretion. Discretion is essential in the administration of justice yet it may not be exercised in contravention of the controlling law. It may not be exercised to perform a function beyond the authority granted by law no matter how laudable the motive or purpose may be.
The statutes governing the selection of juries in effect when this case was tried was passed in 1927. Sec. 40.19. F. S. '41, F.S.A., provides:
"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, 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 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 qualified jurors to complete the panel for the trial of the cause."
Sec. 40.02, F.S. '41, F.S.A., provides the time and manner that the county commissioners shall select a jury list:
"The circuit judge may require the county commissioners to select additional jury lists from time to time as may appear to such judge to be necessary to avoid the names selected becoming exhausted."
The statute prior to 1927 was materially different in that it permitted the presiding judge to either draw the jurors from the box or summon from the bystanders or from the body of thecounty. See Section 2784, R.G.S. 1920, Chapter *Page 606 4386, Acts of 1895. The cases cited by the State were decided under the old statute and, therefore, are not controlling.
We cannot subscribe to the view that the purpose of the statute is to avoid delay in the trial of a case. Had that been the motive of the Legislature, then, there would have been no purpose in amending the existing statute in 1927. When we view the present acts in their entirety on the background of experience in the trial cases, we have no doubt that the Legislature determined, as a matter of public policy, that jurors should be selected by the county commissioners as a body and only in such cases where it was necessary to complete apanel would the sheriff be authorized by the court to summon jurors from the body of the county.
It is true that Sec. 40.02, supra, says the judge may require the county commissioners to replenish the box and does not say shall. It would be a useless expenditure of money and effort to require the box to be refilled every time it becomes exhausted unless there was need for a regular or special venire before the first week in January following. Nevertheless, if a jury is required then the judge may get it only in the manner prescribed by the statute.
The plan provided by the statute is comprehensive and its prime object was to secure jurors from the best men in the county; to be selected by the whole board without regard to the trial of any particular case. It is true that at times there might be some delay to require the board of county commissioners to assemble and refill the box, however the administration of justice necessarily requires time for orderly procedure. To sanction the procedure followed in this case could result in defeating the statute because many of our courts are open continually. The old term is kept open until the new one is opened, hence the claim could always be made that it was during the term and the judge could elect to proceed under Sec. 40.02, or as was done in this case. It was not material to this case but undoubtedly will be of interest to the bar to call attention to the repeal of Sec. 40.19 F.S.A. by Chapter 21,973, Acts of 1943, effective January 1, 1944.
Was the error harmless? Ordinarily we will not reverse a judgment for an error which is harmless. This is always *Page 607 a perplexing problem. If the error is minor in degree and violates no fundamental rule of law, it is usually regarded as harmless. In this instance, the clear and express provision of the statute has been breached. If we should conclude that under the evidence no other verdict could have been reached, then we might say the error did no harm. The jury could have reduced the crime in degree or may have extended mercy. Probably another jury would or would not reach the same verdict. It was not the accused's business to see that a lawful jury was empaneled. If we approve a conviction for any crime, especially a death sentence, by a jury constituted in a manner inconsistent with law, it becomes obvious that we are acting in a most injudicious manner. What can be our answer to the assertion that the accused did not have a lawful trial?
The greatest consolation to sustain a judge in the discharge of his duty in a capital case is to have a jury share his responsibility on the trial of the facts. No doubt the jury in this case was impartial and the Court's finding on the question of fact was correct. At any rate we presume the holding was proper yet had the jury been drawn in the manner provided by the statute this difficult question would have never arisen. As it stands, the verdict could have been no more severe to the accused. Can it be said that his accusation was then wholly without foundation? If it had any foundation, then he was not tried by an impartial jury. Can we say the error was without harm because we would have rendered the same verdict? Can we give any judicial reason for relegating to ourselves the awful responsibility of writing the verdict in this summary fashion?
CHAPMAN, C. J., and BROWN, J., concur.
ON PETITION FOR REHEARING