This is an original mandamus in the nature of aprocedendo brought in the name of the Attorney General of the State as relator for the purpose of coercing the respondent, as Judge of the Circuit Court of the Fourteenth Judicial Circuit, to proceed with the trial of a criminal indictment in accordance with the law applicable to a case wherein a judgment of conviction has been reversed by the Supreme Court on writ of error and the cause remanded for a new trial according to law. The facts as disclosed by the alternative writ of mandamus, and the respondent Judge's return thereto, are as follows:
On December 13, 1932, one J. P. I. Chance killed one R. J. Flanders in Calhoun County, Florida. At the 1933 Spring Term of the Circuit Court of that county, an indictment was duly returned by the grand jury charging said Chance with the first degree murder of said Flanders. In July, 1933, the defendant Chance was placed upon trial in the Circuit Court of Calhoun County upon the charge of first degree murder contained in the indictment.
Prior to the beginning of the trial, the defendant moved the Court to quash the regular and special venires summoned therefor, alleging illegality in the filling of the jury box from which the venires were drawn. The motion was *Page 912 overruled, and a jury was empanelled from said venires and sworn, the trial proceeded and the defendant was convicted of second degree murder. Judgment was entered against him upon the verdict, and upon writ of error sued out by him, the judgment was reversed by this Court solely upon the ground that he had been tried by an illegal jury.
On January 10, 1935, the case was again called for trial, the State insisting upon a trial of the defendant upon the charge of first degree murder contained in the indictment. The respondent, as Judge of the Circuit Court of Calhoun County, however, refused to entertain jurisdiction of the charge of first degree murder upon the grounds that the defendant Chance had been heretofore put in jeopardy upon the charge of murder the first degree and acquitted by a jury. Whereupon, upon petition of the Attorney General, an alternative writ of mandamus was issued herein, requiring the respondent as presiding trial judge to entertain jurisdiction of the case upon the charges of first degree murder, or to show cause why he does not do so.
The respondent Circuit Judge has made his return, stating his reason for not complying with the command of the alternative writ to be that the defendant Chance has been acquitted of the charge of first degree murder by the verdict of the jury convicting him of second degree murder. Motion for peremptory writ, notwithstanding the return, has been made by relator.
In support of his motion for a peremptory writ, the Attorney General advances the contention that inasmuch as the verdict of guilty of second degree murder was on appeal set aside as illegal at the instance of the defendant, Chance, who successfully prosecuted a writ of error to the judgment rendered against him at the first trial (Chance v. State,115 Fla. 397, 155 Sou. Rep. 663), which judgment *Page 913 was reversed because a challenge to the array of the trial jurors was erroneously overruled, that relator has never been placed in jeopardy because of the illegality of the jury which tried him and that therefore said defendants' constructive acquittal of first degree murder became a nullity eo instanti the judgment of conviction of second degree murder was reversed because of an illegally constituted trial jury. To put the proposition another way, the relator's argument is to the effect that defendant Chance has never been legally acquitted of first degree murder because of the fact that he was never in jeopardy upon the previous trial upon the indictment found against him for murder in the first degree, because no trial jury has ever been legally empanellel to try said defendant at the first trial as evidenced by the reversal of the verdict and judgment on that ground.
At the common law, and under the interpretations in American jurisprudence, including the State of Florida, protection from second jeopardy for the same offense includes immunity from further prosecution where, on a valid indictment in a court of a competent jurisdiction, the accused is acquitted by a regularly empaneled jury sworn to try the issue of defendant's guilt. Allen v. State, 52 Fla. 1, 41 Sou. Rep. 593, 120 Am. St. Rep. 188, 10 Ann. Cas. 1085. The rule applies to one who is convicted of a crime less in degree than the offense for which he was indicted. In such instances the defendant is by implication acquitted of the greater offense and may plead the acquittal as a bar to a subsequent indictment for it, even though the conviction of the lesser offense is reversed on appeal. Mann v. State, 23 Fla. 610, 3 Sou. Rep. 207; Ex Parte Vickery, 51 Fla. 151, 40 Sou. Rep. 77; West v. State, 55 Fla. 200,
*Page 914 46 Sou. Rep. 93; Golding v. State, 31 Fla. 262, 12 Sou. Rep. 525; Johnson v. State, 27 Fla. 245, 9 Sou. Rep. 208.
Section 8364, C. G. L., 6059 R. G. S., reads as follows:
"No person shall be held to answer on a second indictment information or complaint, for a crime of which he has been acquitted, but such acquittal may be pleaded by him in bar of any subsequent prosecution for the same crime, notwithstanding any defect in the form or substance of the indictment, information or complaint. (Ch. 4055, Acts 1891, Sec. 7)."
The defendant Chance, prior to reversal of the first judgment of conviction, was placed on trial against his consent. At the very beginning of that trial he filed his challenge to the array of jurors on both the regular and special venires. The State resisted the defendant's efforts to have a proper jury empaneled and contended that the irregularities complained of in the challenge to the array, were not sufficient to render the jury illegal, and the trial court so held. The error committed by the trial court in thus improperly overruling and disallowing the defendant's challenge to the array of the regular and special venires of trial jurors, was of a procedural, not fundamental character. And had not Chance, the convicted defendant, duly insisted upon it as cause for a new trial, ir if he had failed to assign it in this Court by writ of error as ground for reversal of the judgment against him of second degree murder, such error would thereby have been waived and thus left the judgment of conviction based on the previous trial a proper and lawful judgment that could in no sense be avoided on collateral attack such as by habeas corpus.
When the proceedings had against a person placed on trial and tried by a jury before a court of competent criminal jurisdiction, upon a valid indictment or information, upon *Page 915 which the defendant has been arraigned and to which he has pleaded or otherwise joined issue under circumstances equivalent to a plea of not guilty, are such that a judgment of conviction rendered pursuant to a verdict of guilty returned by the jury trying the case would not be subject to collateral attack on habeas corpus as a void judgment, but would simply be reversible on appeal for some procedural error committed and assigned as cause for a new trial upon appellate review in due course of appellate procedure, jeopardy attaches to the person so tried, and where under such circumstances, a defendant has been indicted and tried for murder in the first degree, but convicted of murder in the second degree, and the second degree murder conviction has been reversed for a new trial, because of a procedural error committed in the manner of selecting the trial jurors who found the verdict of guilty of murder in the second degree, it would amount to an unconstitutional deprivation of the rights of the accused under Section 12 of the Bill of Rights to again place such defendant on trial for murder in the first degree, the verdict and judgment of conviction of second degree murder not being void, but simply infected with reversible error for which it slight be set aside upon due appellate complaint in that behalf.
This Court is committed to the doctrine that where a jury is competent under the law, and is impartial as required by the Constitution, and has been tendered by the State and has been accepted by the accused as the trial jury to try the issues of the accusation made against him, that, in the absence of duress or other improper influence tending to injure the accused, such jury's verdict is, for the purposes of judgment against the accused if found guilty, legally sufficient to support a judgment adjudicating guilt as well as the lawful sentence of the law that is permitted *Page 916 to be imposed pursuant to such adverse adjudication. In short, the verdict and resultant judgment are valid against collateral attack, even though a ground for challenge to the array of jurors, or to some of the individuals composing it, would have been sustained had such challenges been timely made. Washington v. State, 95 Fla. 289, 116 Sou. Rep. 470 (text 474); (certiorari denied 278 U.S. 599, 49 Sup. Ct. Rep. 8,73 L.Ed. 528). By the same token a verdict of acquittal in whole or in part in such a case insures to the benefit of the accused with equivalent legal effect.
We hold therefore that when a defendant has been duly tried upon an indictment charging first degree murder, resulting in a conviction of second degree murder, and the conviction is reversed by the Supreme Court at the instance of the defendant because the jurors which tried him were subject to a proper legally allowable challenge to the array before they were empaneled and sworn as trial jurors, that such defendant cannot be subsequently tried upon the charge of first degree murder contained in the indictment, but must be deemed and held to have been duly and legally acquitted of such first degree murder charge, leaving to stand against the accused only the charge of second degree murder and lower degrees of homicide which may be embraced therein.
Mandamus in the nature of procendendo denied.
WHITFIELD, C. J., and TERRELL and BUFORD, J. J., concur.
ELLIS and BROWN, J. J., dissent.