Carter, J.:
The plaintiff in error was convicted of murder in the first degree at the Fall term, 1897, of the Circuit Court of Hamilton county, and from the death sentence imposed upon him sued out this writ of error. The indictment charged “that Jake Blue, Israel Green, Abe Dixon, Will Murphy, Dave Mitchell, Gilbert George and Boykin Brown, late of said county, on the 24th day of July, A. D. 1896, at and in the county and State aforesaid, with force and arms, and with a deadly weapon, to-wit: a pistol, which said pistol was then and there loaded and charged with gunpowder and leaden bullets, and which the said Jake Blue then and there had and held in one of his hands, in and upon one G. M. Fletcher, unlawfully -of their malice aforethought, and from a premeditated design to effect the death of the said G. M. Fletcher, did make an assault, and the said Jake Blue did then and there unlawfully, feloniously of his malice aforethought, and from a premeditated design to effect the death of the said G. M. Fletcher, shoot off and discharge the pistol aforesaid, so loaded and charged as aforesaid, at, towards, against and upon the said G. M. [193] Fletcher, and the said Jake Blue did then and there unlawfully, feloniously of his malice aforethought, design to effect the death of the said G. M. Fletcher, strike, penetrate and wound the said G. M. Fletcher with one of leaden bullets aforesaid, so shot off and discharged out of the pistol aforesaid, thereby giving and inflicting unlawfully, and from a premeditated design to effect the death of the said G. M. Fletcher, in and upon the body of the said G. M. Fletcher, one mortal wound of the depth and breadth to the jurors unknown, of and from which mortal wound the said G. M. Fletcher then and there instantly died. And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Israel Green, Abe Dixon, Will Murphy, Dave Mitchell, Gilbert George and Boykin Brown were then and there present, unlawfully and from a premeditated design to effect the death of the said G. M. Fletcher, aiding, abetting, assisting, comforting, procuring, encouraging, counseling and commanding the said Jake Blue, the murder aforesaid, in manner and form aforesaid, to do and commit. So the jurors aforesaid upon their oaths aforesaid do say, that the said Jake Blue, Israel Green,' Abe Dixon, Will Murphy, Dave Mitchell, Gilbert George and Boykin Brown, at the time aforesaid and in the county, circuit and State aforesaid, did commit the crime of murder in the first degree contrary,” &c.
I. It is insisted that the court erred in overruling defendant’s challenge of a proposed juror for cause. It is unnecessary for us to consider whether this ruling was or was not erroneous, because the record shows that when his challenge for cause was disallowed the defendant peremptorily challenged the proposed juror, and it does not show that defendant objected to any other juror tendered him, or that his peremptory challenges [194] were exhausted at the time the jury were sworn. In i Thompson on Trials, §115, the rule is stated to be, that if the court erroneously overrules a challenge for cause, and therafter the challenging party excludes the obnoxious juror by a peremptory challenge, he can not assign the ruling of the court for error unless it appear that before the jury was sworn his quiver of peremptory challenges was exhausted; and it seems that some courts go even further and hold in such cases that it must appear, not only that the peremptory challenges were exhausted, but that some objectionable person took his place upon the jury, who otherwise would have been excluded by a peremptory challenge.. It is unnecessary for us to determine at this time whether the rule goes to the extent of requiring a showing that some objectionable person served upon the jury who might have been excluded by a peremptory challenge, but we are entirely satisfied that a defendant suffers no injury in such a case unless it is made to appear that his peremptory challenges were exhausted before the jury were sworn. Montague v. State, 17 Fla. 662; Andrews v. State, 21 Fla. 598, text, 605; Denham v. State, 22 Fla. 664.
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Carter, J.:
The plaintiff in error was convicted of murder in the first degree at the Fall term, 1897, of the Circuit Court of Hamilton county, and from the death sentence imposed upon him sued out this writ of error. The indictment charged “that Jake Blue, Israel Green, Abe Dixon, Will Murphy, Dave Mitchell, Gilbert George and Boykin Brown, late of said county, on the 24th day of July, A. D. 1896, at and in the county and State aforesaid, with force and arms, and with a deadly weapon, to-wit: a pistol, which said pistol was then and there loaded and charged with gunpowder and leaden bullets, and which the said Jake Blue then and there had and held in one of his hands, in and upon one G. M. Fletcher, unlawfully -of their malice aforethought, and from a premeditated design to effect the death of the said G. M. Fletcher, did make an assault, and the said Jake Blue did then and there unlawfully, feloniously of his malice aforethought, and from a premeditated design to effect the death of the said G. M. Fletcher, shoot off and discharge the pistol aforesaid, so loaded and charged as aforesaid, at, towards, against and upon the said G. M. [193] Fletcher, and the said Jake Blue did then and there unlawfully, feloniously of his malice aforethought, design to effect the death of the said G. M. Fletcher, strike, penetrate and wound the said G. M. Fletcher with one of leaden bullets aforesaid, so shot off and discharged out of the pistol aforesaid, thereby giving and inflicting unlawfully, and from a premeditated design to effect the death of the said G. M. Fletcher, in and upon the body of the said G. M. Fletcher, one mortal wound of the depth and breadth to the jurors unknown, of and from which mortal wound the said G. M. Fletcher then and there instantly died. And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Israel Green, Abe Dixon, Will Murphy, Dave Mitchell, Gilbert George and Boykin Brown were then and there present, unlawfully and from a premeditated design to effect the death of the said G. M. Fletcher, aiding, abetting, assisting, comforting, procuring, encouraging, counseling and commanding the said Jake Blue, the murder aforesaid, in manner and form aforesaid, to do and commit. So the jurors aforesaid upon their oaths aforesaid do say, that the said Jake Blue, Israel Green,' Abe Dixon, Will Murphy, Dave Mitchell, Gilbert George and Boykin Brown, at the time aforesaid and in the county, circuit and State aforesaid, did commit the crime of murder in the first degree contrary,” &c.
I. It is insisted that the court erred in overruling defendant’s challenge of a proposed juror for cause. It is unnecessary for us to consider whether this ruling was or was not erroneous, because the record shows that when his challenge for cause was disallowed the defendant peremptorily challenged the proposed juror, and it does not show that defendant objected to any other juror tendered him, or that his peremptory challenges [194] were exhausted at the time the jury were sworn. In i Thompson on Trials, §115, the rule is stated to be, that if the court erroneously overrules a challenge for cause, and therafter the challenging party excludes the obnoxious juror by a peremptory challenge, he can not assign the ruling of the court for error unless it appear that before the jury was sworn his quiver of peremptory challenges was exhausted; and it seems that some courts go even further and hold in such cases that it must appear, not only that the peremptory challenges were exhausted, but that some objectionable person took his place upon the jury, who otherwise would have been excluded by a peremptory challenge.. It is unnecessary for us to determine at this time whether the rule goes to the extent of requiring a showing that some objectionable person served upon the jury who might have been excluded by a peremptory challenge, but we are entirely satisfied that a defendant suffers no injury in such a case unless it is made to appear that his peremptory challenges were exhausted before the jury were sworn. Montague v. State, 17 Fla. 662; Andrews v. State, 21 Fla. 598, text, 605; Denham v. State, 22 Fla. 664.
II. The court drew from the jury box fifty names as a special venire from which to supply deficiencies in the regular panel in selecting a jury to try this case. When the regular panel was exhausted, the name of J. S. Green, being first .on the special venire, was called. This proposed juror stated that he was a member of the grand jury empanelled at the Fall term of the court; that he knew of no other J. S. Green in the county; that there was no other J. S. Green in the county. The defendant thereupon moved the court to quash the special .venire upon the ground that it was improperly and illegally drawn, “because there was only one J. S. Green [195] in the county, and that two J. S. Greens were drawn from the jury box.” The overruling of this motion is assigned as error. Section 3, Chapter 4122, acts of 1893, requires the board of county commissioners of the several counties, at a meeting to be held the first week in January of each year, or as soon thereafter as practicable, to select from the list of male persons qualified to serve as jurors, and make out a list of'a certain number of persons as therein provided,properly qualified to serve as jurors, with a proviso, that if any person so selected shall be ascertained to be disqualified or incompetent to serve as a juror, the same shall not affect the legality of such list, or be cause of challenge to the array of any jury chosen from such list, but that the disqualified person shall be subject to be challenged for cause. Section 4 requires the clerk of the Circuit Court, under certain specific directions, to write out the names of the persons contained in the selected list on separate pieces of paper and deposit them in a box to be closed and kept in accordance with specific directions. Section 5, as amended by Chapter 4386, acts of 1893, requires the judge at every regular or special term of the court, under certain . regulations, to draw from this box the names of persons to serve as jurors, both grand and petit, at the next term of the court, and on the opening day of such next term to place the names of* the persons in attendance so drawn in a box, and to draw therefrom the names of eighteen persons to serve as grand jurors ; the remainder to constitute a panel of petit jurors for the first week of the court. Section 6, as amended by said act of 1895, requires the clerk, under certain regulations, to draw the names from the jury box when the judge has failed to do so as required by (the preceding section. Section 1158 Revised Statutes, as amended by said act of 1895, authorizes the judge to [196] draw special venires from this box, and under this provision the special venire was drawn in this case. If the provisions of the statutes quoted were complied with, and there was no other J. S. Green in the county, then it is reasonably certain that Mr. Green’s name was on two separate slips of paper in the jury box, and that it was regularly drawn as a juror for this Fall term, and again drawn on the special venire. We do not think the mere fact that his name was placed upon two separate pieces of paper in the jury box, or that his name was regularly drawn twice from the box during the same year, was such an irregularity as to render illegal the entire box, or any venire summoned therefrom. It was, perhaps, an error of the clerk, who in transcribing to slips of paper for deposit in the jury box the names contained on the commissioners’ list, no doubt duplicated the name of Mr. Green, but as it is not intimated that his action was intentional or done from any improper motive, we do not think the entire special venire should have been quashed. This juror was not taken upon the jury which tried the defendant, and we do not think he has any legal ground to complain of the irregularity. In arriving at this conclusion we do not overlook the statement in Glad din v. State, 13 Fla. 623, that “irregularities however slight, when they show a departure from the provisions of the law in respect to the selection, summoning and empanelling of jurors, are proper grounds of objection to the jury, and form grounds of challenge to the array.” The present case does not fall within even this broad statement of the law. The mere fact that the name of a particular person may be twice found in, or drawn from, a jury box during the same year, is not an irregularity in the- selection, summoning or empanelling of jurors. His name was duly selected and placed in the box, and if he is rendered incompetent or dis[197] qualified by having been once regularly drawn, advantage may be taken of that fact by challenging him for cause, but his disqualification is not .under the proviso of section 3, act of 1893, a ground of challenge to the array.
III. The defendant objected to the testimony of M. H. James, a State witness, detailing certain inculpatory statements made to him by the defendant. The witness was a deputy sheriff, and the statements were made by defendant while in prison awaiting trial under this indictment. The witness testified that the statements were freely and voluntarily made; that no improper influences were exerted to induce them, and there is in the record not a syllable of evidence contradicting his testimony in this respect. Indeed the defendant, though a witness, did not deny making the statements attributed to him, nor intimate that they were improperly obtained ;but, on the contrary, testified to the same matters substantially as were claimed by James to have been admitted to him. The defendant’s objection to the testimony of this witness was that defendant’s confessions were inadmissible, because the State had not shown that they were voluntarily made, which as we have stated, is not borne out by the record, and because the defendant at the time was in prison, and made the confessions to a deputy sheriff. The law does not exclude confessions made to an officer, even though the party making them be at the time in prison. The fact that the deffehdant was at the time in prison, or under arrest, or that .the confession was made to an officer, may be considered by the court in determining whether the confession was free and voluntary, or produced by duress, hope of reward, or other improper influence; but if found to be otherwise admissible, it should not be excluded for these reasons alone. Holland v. State, 39 Fla. 178, 22 [198] South. Rep. 298; 6 Am. & Eng. Ency. of Law (2nd ed.), p. 536.
IV. The defendant requested the court to charge the jury as follows: “Jake Blue, being charged of doing the shooting that killed young Fletcher, and he Jake Blue, having heretofore been convicted of murder in the second degree, you can not convict the prisoner of a higher offense than murder in the second degree, if you should convict him at all.” The court properly refused this charge, for several reasons: First, there was no evidence before the jury that Jake Blue had been convicted of murder in the second degree, or of any other offense under this indictment; the defendant was tried alone, and there was no evidence before the jury that any other defendant embraced in the indictment had been tried or convicted; second,- the indictment in this case charged each and all of the defendants with murder in the first degree. Jake Blue was charged as principal of the first degree, and the defendant and- five others as principals of the second degree in this crime. 1 Bishop’s New Criminal Law, §648. Although the indictment charged that Blue fired the fatal shot, the defendant could be properly convicted upon proof that he fired it, or that it was fired by either of the- other defendants while he was present aiding and abetting the act, provided of course the homicide amounted to murder in the first degree. Bryan v. State, 19 Fla. 864; Albritton v. State, 32 Fla. 358, 13 South. Rep. 955. And the acquittal or conviction of Blue or any other defendant, or their conviction of a lesser offense than that of murder in the first degree, would not operate as a bar to defendant’s conviction for murder in the first degree, if the evidence was sufficient to show that he was guilty of that crime. Montague v. State, 17 Fla. 662; 1 Bishop’s New Crim. Law, §800; 2 Bishop’s Crim. Proc. §3.
[199] V. The court did not err in refusing to charge the jury at the defendant’s request that “the prisoner’s statement should be weighed by you like all other testimony, and you may if you see fit base your verdict on it alone.” The defendant under Chapter 4400, acts of 1895, when he elects to avail himself of its provisions, assumes the status of a witness in his own behalf, and what he states on such examination is subject to the tests established for weighing the testimony of other witnesses; but he is no longer authorized to make a statement to the jury, under oath of the matters of his defense, as was the case prior to the enactment of said Chapter 4400. Hart v. State, 38 Fla. 39, 20 South. Rep. 805. The first clause of this instruction, notwithstanding the use of the word “statement” (Lester v. State, 37 Fla. 382, text, 389, 20 South. Rep. 232), might with entire propriety have been given; but the second clause, to the effect that the jury might if they saw fit, base their verdict upon the defendant’s statement alone, was misleading. Aside from the fact that this instruction singled out and gave prominence to the testimony of a particular witness, it did not require the jury to believe the testimony of the defendant to be true in order to base a verdict upon it, but authorized them if they sazv fit, to discard all other evidence in the case, however credible, and base a verdict upon defendant’s evidence, however incredible. No jury is authorizd to arbitrarily or capriciously disregard or accept the testimony of any witness, or to base their verdict upon the testimony of a particular witness without reference to other credible evidence before them. It is their duty to consider, compare and weigh all the evidence in the case, reconciling conflicts, if they can, and at all events to base their verdict upon that portion of the evidence which they believe to be true, discarding [200] that only which they do not believe to be true. Hicks v. State, 25 Fla. 535, 6 South. Rep. 441.
VI. The court committed no error in overruling the motion for a new trial. .The evidence was sufficient to support the verdict, and the judgment of the court below is affirmed.