The statement that the judgment was reversed in the case of Chance v. State, 115 Fla. 397, 155 South. Rep. 663, "solely upon the ground that he had been tried by an illegal jury," is somewhat confusing in the light of the point in controversy, which is that a person is not placed in jeopardy until he is confronted by a *Page 917 legally constituted jury which has been charged with the deliverance of the accused. See 16 C. J. 244; 8 R. C. L. 139.
A person accused of crime is not "tried," within the legal acceptance of that term, by twelve persons who have been assembled without authority of law and sworn to try the accused according to the evidence, because a trial in a criminal case where the accused is charged with felony means where a jury has been legally impaneled and sworn to try the issue joined between the State and the accused according to the evidence. That never happened in this case.
The accused protested to the court against the impaneling of the twelve persons brought before the court to serve in the capacity of jurors because he said the method of their selection was unlawful, therefore the bringing of the men together to perform jury service in the case was of no more legal efficiency than if they had by chance appeared in the court room and were required to take their seats in the jury box for jury duty.
This Court, in considering the question brought here by the accused in protest against a judgment resting upon the decision of the so-called jury, said that the motion of the accused to quash the venire under which the persons were brought into court to serve as jurors should have been granted and appropriate orders made for the proper preparation of jury lists by the County Commissioners in strict compliance with the controlling statutes.
The order of the court was in the following words: "Reversed for appropriate proceedings."
The judgment was a nullity. There was no legal trial of the accused. The administering of the oath to the twelve persons who sat in the jury box did not make legal jurors of them. At no time during the proceedings after the plea of not guilty was there a trial of the accused within the *Page 918 meaning of that term. It is no argument to say that if the accused had not continued his protest against the unlawful proceeding that the judgment would have been executed by the imprisonment of the accused, because that is to say that the consent of the accused imparts a quality of legal verity to a proceedings in a court which had no jurisdiction of such proceedings. The right to a trial by a jury is secured to a person charged with crime by the terms of the Constitution. Sec. 3, Bill of Rights.
In Cotton v. State, 85 Fla. 197, 95 South. Rep. 668, the Court held that the trial of an issue on a plea in abatement to an indictment for a capital offense by a jury of six was a denial of the right of a jury trial. Such a proceeding was a lack of the due process of the law that is demanded by the Constitution.
The accused could not have waived trial in this case by a jury of less than twelve persons. A jury within the legal meaning of that terms consists of persons duly chosen as the law requires for that service. That was not done in this case. Therefore a waiver of objection by him would have been a waiver of a jury trial which was impossible under the Constitution.
The fact that in the absence of an objection from him the so-called conviction would have been executed proves nothing except that in some cases there are miscarriages of justice which is not remarkable as to any human institution.
It is true as stated in the majority opinion that the doctrine obtains in this State that the conviction of a person of a lower grade of offense embraced in the higher offense with which he stands charged is an acquittal of the higher grade of offense, but it is difficult to understand how that doctrine applies in a case where there has been no legal conviction. *Page 919 In any case, the so-called conviction has been set aside on the attack of the accused. The entire proceeding including the so-called verdict and judgment has been vacated. How then can that which has been anunulled be treated as valid to acquit the accused on one charge and void as a conviction on the other or lesser offense.
I therefore think the writ should issue.
Brown, J. (concurring specially).
I do not go so far as to hold that the conviction, if it had not been reversed and set aside, would have been anullity. On the face of the record, as I viewed the original trial, the court had jurisdiction and the jury was legal. It was by extrinsic evidence that the defendant showed that the jury list had not been made up as the law required. In other respects, I concur in the opinion and conclusion reached by Mr. Justice Ellis.
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