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John Morrison vs. John L. McKinnon-Opinion of Court.

greater quantity, though of the same kind of article, is not sufficient. A loan of one hundred bushels of salt, for example, in 1783, when it was worth twelve shillings, to repay double the quantity at the end of the year, when it might have been worth but four shillings, would not come within the statute, be the price what it may at the year's end. The contract in this case, though in the form of a loan, was really in the nature of a speculation and bargain of hazard. It depended upon a contingency, to wit, that of depreciation, whether all, or how much of the principal or value loaned, should be repaid, and which of the parties the speculation would ultimately favor, which takes the contract entirely out of the statute." 2 Burr., 891.

The fifth ground of error is that the court refused a new trial upon the defendant's motion, one of the grounds of which was the relationship by affinity between the plaintiff and one of the jurors. No authorities are cited in the appellant's brief, and perhaps the appellant intended to abandon the position. At the common law, relationship within the ninth degree is ground of challenge of a juror, for favor; and even to the array, where the sheriff who summoned the jury was so connected. But when the parties omit to challenge, strong reasons must be shown for the omission. Here, the appellant's counsel makes affidavit that he was not aware of the relationship when the jury was drawn; but the appellant himself being present says nothing. Nor do the affidavits show that the parties through whom the relationship once existed are still living. In Cain vs. Ingham, 7 Cowen, 478, the sheriff summoned as a juror "one Clapsaddle, whose father had married the widow of the defendant's brother. Clapsaddle's father died before the trial." A motion being made to set aside the verdict for the incompetency of the juror, and the plaintiff not showing a good excuse for not challenging, the motion was denied. The court say: "It is going too far to say that matter of mere evidence upon challenge to the juror, matter which is undefined and infinitely diversified and multifarious, shall be a cause for setting aside a verdict, when it

Silas Gladden vs. The State of Florida-Syllabus.

is accompanied with no evidence that the juror is in fact influenced from that cause."

The amount involved in the case at bar is small, and this is probably the last case that may come before this court, originating in a justice's court, yet on account of the industry and zeal of the counsel in preparing and presenting it, as well as the interesting nature of some of the questions raised, it has received as earnest consideration as though the amount had been more important.

The order refusing a new trial, and the judgment, must be affirmed, with costs.

SILAS GLADDEN, PLAINTIFF IN ERROR, VS. THE STATE OF FLORIDA, DEFENDANT IN ERROR.

1. Under the statutes of this State regulating the subject at the time of this trial, there must have been fifteen grand jurors on the panel as originally drawn.

2. After organization of the grand jury, in accordance with the terms of the statute, their proceedings are governed by common law rules, and the improper discharge of one member of the grand jury does not vitiate its proceedings if a sufficient number to find an indictment remain.

3. Every indictment must be found by at least twelve, but it is not necessary that all above that number should be present consenting.

4. The rules of law in granting continuances in civil and criminal cases are substantially the same, except so far as they are modified by the difference in proceedings. In criminal cases, however, the grounds for the motion should be scanned more closely than in civil cases, on account of superior temptation to delay.

5. In a motion of this character much must be left to the tribunal before which the parties are. Circumstances occurring in its presence often indicate whether such motions are in good faith, and a writ of error will not be sustained on account of the refusal of the court to grant a continuance

Silas Gladden vs. The State of Florida-Syllabus.

unless it is a plain and palpable instance of the arbitrary and oppressive exercise of the discretion necessarily vested by law.

6. In applications for a continuance it must be shown by affidavit that the witness has been duly served with a subpoena, or a satisfactory reason assigned for the omission, and when it is not served, and the time at which the subpoena is issued is not disclosed, nor the residence of the witness stated, so that this court can determine the propriety of the order of the court below in these respects, this court will not interfere.

7. General objections to questions addressed to witnesses, without stating the precise ground of objection, are vague and nugatory, and if entitled to weight anywhere are without weight before an appellate court. If any grounds of objection were stated in the court below, the bill of exceptions should disclose them, and when they do not SO appear this court will not pass upon them when urged here by way of argument or embodied in the assignment of errors.

8. A past quarrel or encounter, if sufficient time for the cooling of passion has transpired, does not justify the killing of an unarmed man with a deadly weapon.

9. The court, after charging as to the different grades of homicide and the requisite evidence to support them, is not bound on the motion of either party to repeat the same charge in substance, thiugh varied in

terms.

10. An instruction to the effect that "if you believe from the evidence that the prisoner killed the deceased through fear or cowardice, or under the belief that great bodily harm is about to be done, although there was no danger to life or great bodily harm, it will be a justifiable killing, and you will acquit." is properly refused. Every person is presumed to be sane, and he should be held responsible for reasonable deductions. The belief must be reasonable; there must be reasonable ground for apprehending a design to take away life or do great bodily harm, and reasonable ground for believing the danger imminent that such design will be accomplished at the time of the killing.

11. Before a person can avail himself of the defense that he used a deadly weapon in the defense of his life, and be justified, he must satisfy the jury that the defense was necessary at the time; that he did all he could to avoid it, and that it was necessary to protect his own life or to protect himself from such great bodily harm as would give him a reasonable apprehension that his life was in immediate danger.

12. What facts justify or excuse a homicide is a question of law. It is

Silas Gladden vs. The State of Florida-Statement of the Case.

the province of the court to state what the rules of law are as to facts, and of the jury to determine whether such facts exist in the particular case.

13. It is within the province of the court, after defining the different grades of homicide, to restrict its charges to points of law arising upon the facts, being careful to give such instructions as cover all reasonable deductions.

14.

The prisoner, in a capital case, must be personally present during the whole of the trial, and at every step taken in the cause. He has the right to discuss questions, both of law and of fact, and no step can be taken in his absence.

Writ of Error to Circuit Court for Jackson county.

The plaintiff in error was indicted for the murder of Addison Fullerton. On the morning of the day of the homicide, the prisoner and deceased met casually at a house called the "Tidwell Place." A difficulty occurred there between the parties.

Eliza Jane Tidwell (for the defense) testified in reference to this antecedent difficulty: "That the parties met at the Tidwell Place. That Mr. Gladden said: 'Addison, I suppose you are going to sell me out.' Mr. Fullerton replied: 'Attend to your business and I will attend to mine. It ain't me going to sell you out, it is the sheriff. I don't want your property.' Whereupon, the witness states: "Fullerton jumped up with his knife in his hand and run at Mr. Gladden, run him around the smoke house, then jumped in the door and got the gun, ran out in the piazza and presented the gun at Mr. Gladden and said to him, 'God damn you, leave here. I will kill you before sundown if there is powder and lead to do it.' Mr. Gladden then mounted his horse and rode off."

Other witnesses testify about the same, and also state that when Gladden was running around the house, and Fullerton was following him, he (Fullerton) said "he would cut his lights out."

Another witness, W. W. Tidwell (for the State), in detailing what he saw of this previous difficulty, says: "I was at Tidwell's place. I saw both parties. The first I heard was a re

Silas Gladden vs. The State of Florida-Statement of the Case.

mark of Mr. Gladden. He told Mr. Fullerton to shut his mouth. Mr. Fullerton told him he would not do it. Then Mr. Gladden jumped up and said: 'By God, I'll make you do it.' Fullerton then got up. Mr. Gladden struck Fullerton with a stick, a common-sized walking-stick. The stick was cracked. After the blow Mr. Gladden ran and Fullerton took after him. Gladden ran out one door, round the smoke-house, out of the gate, and jumped on his horse. When he got on his horse Gladden said to Fullerton, 'I will kill you before the sun goes down.' Fullerton replied, I can shoot as much as you.”

Gladden,after riding off,went to his house, distant about one or one and a quarter miles from the place of difficulty, and returned with his gun. He was absent from a half to three-quarters of an hour. Upon his return he shot and killed Fullerton. The circumstances are thus stated in substance by the witnesses:

John Johnson (for the State): "Addison Fullerton was shot by Silas Gladden. I was pretty close when he shot him-was thirty or thirty-five steps from Gladden. I was sitting in the house, when some one in the house said: 'Yonder comes Mr. Gladden with a gun.' I looked out the door and saw Mr. Gladden on horseback. He reined up his horse. Mr. Fullerton, who was a few yards ahead of Mr. Gladden, was walking off from him. Fullerton stopped and turned his face towards Mr. Gladden. While he was turning Gladden raised the gun, and about the time Fullerton was turned, the gun fired. I think the distance between the parties at the time of firing was about fifteen or eighteen yards. Fullerton stood up a moment and then fell."

W. C. Grant (for State): "Fullerton was killed by Gladden. I saw Gladden shoot him down. When I got to the door, heard Mr. Gladden, who was on horseback, order Fullerton to stop. Fullerton, who was on foot, told him he would not do it. Mr. Gladden told him he would make him stop, and put his gun to his face and fired. Fullerton walked about five steps and fell. He lived about a minute and a half. Mr. Fullerton was not

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