Carter, J.:
At the Spring term, 1900, of the Circuit Court of Alachua county, plaintiff in error was tried and convict[547]*547ed upon an indictment found at that term charging that he, William J. Knight, in Alachua county, on March 13, 1900, “in and upon one Ben Brown, with a deadly weapon, to-wit; a certain pistol which was then and there loaded with gunpowder and leaden bullets, and by him, the, said William J. Knight, then and there held in his hand, unlawfully, feloniously, of his malice afterthought and from a premeditated design ito effect the death of the said Ben Brown, did make an assault, and he, the said William J. Knight, did then and there: unlawfully, feloniously, of his malice aforethought and from a premeditated design to effect the death of the said' Ben Brown, shoot off and discharge the said pistol so loaded with gunpowder and leaden bullets aforesaid, at and upon the said Ben Brown, with intent then and there unlawfully, feloniously, of his malice aforethought and from a premeditated design to effect the death of the said Ben Brown to kill and murder the'said Ben Brown, contrary to the form of the Statute,” &c. From the sentence imposed this writ of error is taken.
The defendant filed pleas in abatement, to which a demurrer interposed by the State was sustained. One of these pleas alleged that at the time the indictment was found and presented, another indictment for the same charge was pending against the defendant. This plea was bad and the demurer to it properly sustained. Smith v. State, 42 Fla. -, 27 South. Rep. 868. The other pleas alleged that the grand jury which found the indictment was not a legal body. It appears from the allegations of these pleas that there was no Criminal Court of Record in Alachua county; that the persons constituting the grand jury were not summoned by order of the presiding judge from bystanders or the [548]*548body of the county, or drawn from the jury box prepared by the county commissioners for the year 1900, by the judge or his order, or by the clerk in the presence of the county judge or justice of the peace and sheriff or his deputy; that the names of said persons were not drawn from the jury box prepared by the county commissioners for the year 1900, and that the names of such persons were not drawn by order of the judge ordering the drawing of the names of thirty persons from which when summoned and appearing a grand jury was to be drawirto' serve a.t the Spring term of the court for the year 1900. The pleas also allege certain irrelgularities in the preparation of the jury box for the year 1900, which it is claimed rendered such box illegal. 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 ás jurors, and make out a list of a certain number of persons as therein provided, properly qualified to serve as jurors. Section 4 requires the clerk of the Circuit Court, under certain specific directions, ta write the names of the persons contained in the list so selected 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 1895, requires the judge at every regular or special term, in open court, in the presence of the clerk or his deputy and the sheriff or his deputy, to draw from such box the names of thirty persons to serve as jurors ait the next succeeding regular or special term of the court. A list of the persons so drawn in the judge’s handwriting, together with the [549]*549slips containing the names of the persons drawn, are required to be deposited in an envelope, prepared as therein directed, and delivered to. the clerk, whoi under certain regulations, is required to open said envelope at least fifteen days before the opening of the next term of the court and to issue a venire to the sheriff requiring him to summon the persons so. drawn as jurors to. appear at the ensuing term of the court, and on the opening day of the next term of the court the judge is required to place the names of the thirty persons so- summoned, or as many as appear, in a, box and draw therefrom the names of eighteen persons to serve, as. grand jurors for the term, and the persons whose names remain in the-box are required to serve as petit jurors, for the first week of the term. Section 6, as amended by said act of 1895, requires the clerk under certain regulations, to draw the thirty names from the box when the judge has failed to do so as required by the preceding section. Chapter 4736 acts of 1899, makes provision, for obtaining by drawing from the box, or summoning from the body of the county, jurors grand and petit, where at a term of the court it appears that none have been drawn; or, if drawn, where the panel shall be quashed for any cause. It does not appear from the record of the pleas how the grand jury in this, instance was obtained, nor does it appear that a special term of the court was held between the regular Fall term, 1899, and the regular Spring term, 1900, nor that there had been a failure to draw jurors for the term, no-r that any panel had been quashed at that term. There is no allegation in the pleas showing that the grand jury for the Spring term, 1900, were drawn from the box prepared for the year 1900, or that the jurors were not duly selected from [550]*550thirty names drawn from the box by the judge at the previous term — the Fall term 1899 — and summoned and empannelled in accordance with the provisions of the statutes referred to. If so the box from which they were drawn was prepared for the year 1899, and no. irregularities in the preparation of that box are, alleged in the pleas. These pleas being dilatory, are required to be accurate and precise free from ambiguity and certain to every intent. Miller v. State, 42 Fla. -, 28 South. Rep. 208. For aught that appears this grand jury may have been drawn in strict accordance with law from the box prepared for 1899, and if so, failure to draw them from the box prepared for the subsequent year or irregularities in-the preparation of that box can not affect the legality of the jury so drawn.
The defendant failed to file a joinder in the, State’s demurrer to the pleas in, abatement, and this omission was made the basis of a motion in arrest of judgment. The record shows that the counsel for the defendant and the, State waived argument of the demurrer, and submitted the demurrer without argument for decision, and no objection based upon the failure to file the joinder was made until after verdict rendered upon his plea of not guilty. The, motion in arrest on the ground stated was properly overruled, because the ommission of the record in a criminal case to- show a joinder in a demurrer is immaterial, and cannot be objected to, after the decision of the demurrer. Commonwealth v. McCormack, 126 Mass. 298; Dixon v. State, 13 Fla. 631.
The following, among other instructions was given by the court: “If the jury from the evidence, beyond a reasonable doubt, that the defendant Wm. J. Knight, at any time within two years before; the finding of the in[551]
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Carter, J.:
At the Spring term, 1900, of the Circuit Court of Alachua county, plaintiff in error was tried and convict[547]*547ed upon an indictment found at that term charging that he, William J. Knight, in Alachua county, on March 13, 1900, “in and upon one Ben Brown, with a deadly weapon, to-wit; a certain pistol which was then and there loaded with gunpowder and leaden bullets, and by him, the, said William J. Knight, then and there held in his hand, unlawfully, feloniously, of his malice afterthought and from a premeditated design ito effect the death of the said Ben Brown, did make an assault, and he, the said William J. Knight, did then and there: unlawfully, feloniously, of his malice aforethought and from a premeditated design to effect the death of the said' Ben Brown, shoot off and discharge the said pistol so loaded with gunpowder and leaden bullets aforesaid, at and upon the said Ben Brown, with intent then and there unlawfully, feloniously, of his malice aforethought and from a premeditated design to effect the death of the said Ben Brown to kill and murder the'said Ben Brown, contrary to the form of the Statute,” &c. From the sentence imposed this writ of error is taken.
The defendant filed pleas in abatement, to which a demurrer interposed by the State was sustained. One of these pleas alleged that at the time the indictment was found and presented, another indictment for the same charge was pending against the defendant. This plea was bad and the demurer to it properly sustained. Smith v. State, 42 Fla. -, 27 South. Rep. 868. The other pleas alleged that the grand jury which found the indictment was not a legal body. It appears from the allegations of these pleas that there was no Criminal Court of Record in Alachua county; that the persons constituting the grand jury were not summoned by order of the presiding judge from bystanders or the [548]*548body of the county, or drawn from the jury box prepared by the county commissioners for the year 1900, by the judge or his order, or by the clerk in the presence of the county judge or justice of the peace and sheriff or his deputy; that the names of said persons were not drawn from the jury box prepared by the county commissioners for the year 1900, and that the names of such persons were not drawn by order of the judge ordering the drawing of the names of thirty persons from which when summoned and appearing a grand jury was to be drawirto' serve a.t the Spring term of the court for the year 1900. The pleas also allege certain irrelgularities in the preparation of the jury box for the year 1900, which it is claimed rendered such box illegal. 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 ás jurors, and make out a list of a certain number of persons as therein provided, properly qualified to serve as jurors. Section 4 requires the clerk of the Circuit Court, under certain specific directions, ta write the names of the persons contained in the list so selected 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 1895, requires the judge at every regular or special term, in open court, in the presence of the clerk or his deputy and the sheriff or his deputy, to draw from such box the names of thirty persons to serve as jurors ait the next succeeding regular or special term of the court. A list of the persons so drawn in the judge’s handwriting, together with the [549]*549slips containing the names of the persons drawn, are required to be deposited in an envelope, prepared as therein directed, and delivered to. the clerk, whoi under certain regulations, is required to open said envelope at least fifteen days before the opening of the next term of the court and to issue a venire to the sheriff requiring him to summon the persons so. drawn as jurors to. appear at the ensuing term of the court, and on the opening day of the next term of the court the judge is required to place the names of the thirty persons so- summoned, or as many as appear, in a, box and draw therefrom the names of eighteen persons to serve, as. grand jurors for the term, and the persons whose names remain in the-box are required to serve as petit jurors, for the first week of the term. Section 6, as amended by said act of 1895, requires the clerk under certain regulations, to draw the thirty names from the box when the judge has failed to do so as required by the preceding section. Chapter 4736 acts of 1899, makes provision, for obtaining by drawing from the box, or summoning from the body of the county, jurors grand and petit, where at a term of the court it appears that none have been drawn; or, if drawn, where the panel shall be quashed for any cause. It does not appear from the record of the pleas how the grand jury in this, instance was obtained, nor does it appear that a special term of the court was held between the regular Fall term, 1899, and the regular Spring term, 1900, nor that there had been a failure to draw jurors for the term, no-r that any panel had been quashed at that term. There is no allegation in the pleas showing that the grand jury for the Spring term, 1900, were drawn from the box prepared for the year 1900, or that the jurors were not duly selected from [550]*550thirty names drawn from the box by the judge at the previous term — the Fall term 1899 — and summoned and empannelled in accordance with the provisions of the statutes referred to. If so the box from which they were drawn was prepared for the year 1899, and no. irregularities in the preparation of that box are, alleged in the pleas. These pleas being dilatory, are required to be accurate and precise free from ambiguity and certain to every intent. Miller v. State, 42 Fla. -, 28 South. Rep. 208. For aught that appears this grand jury may have been drawn in strict accordance with law from the box prepared for 1899, and if so, failure to draw them from the box prepared for the subsequent year or irregularities in-the preparation of that box can not affect the legality of the jury so drawn.
The defendant failed to file a joinder in the, State’s demurrer to the pleas in, abatement, and this omission was made the basis of a motion in arrest of judgment. The record shows that the counsel for the defendant and the, State waived argument of the demurrer, and submitted the demurrer without argument for decision, and no objection based upon the failure to file the joinder was made until after verdict rendered upon his plea of not guilty. The, motion in arrest on the ground stated was properly overruled, because the ommission of the record in a criminal case to- show a joinder in a demurrer is immaterial, and cannot be objected to, after the decision of the demurrer. Commonwealth v. McCormack, 126 Mass. 298; Dixon v. State, 13 Fla. 631.
The following, among other instructions was given by the court: “If the jury from the evidence, beyond a reasonable doubt, that the defendant Wm. J. Knight, at any time within two years before; the finding of the in[551]*551dictment in this case, shot one Ben Brown with a.pistol, in Alachua county, Florida, from a premeditated design to effect the death of Ben Brown, or if the shooting was an act imminently dangerous to another and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, then the jury should convict the defendant as charged in the indictment.” The defendant excepted to this instruction as a whole and to that portion thereof which heads as follows: “If the shooting was an act imminently dangerous to another and evincing a depraved mind regardless of human life although without any premeditated design to effect the death of any particular individual, then the jury should convict the defendant as charged in the indictment.” This indictment was framed under the same statute as that considered by us in Williams v. State, 41 Fla. 295, 26 South. Rep. 184, and we held that the gist of the offence denounced by the statute was the intent to commit a felony. We there said: “Upon indictments for assault with intent to commit any of the grades or degrees of unlawful homicide, it will not be sufficient to show that the killing, had it occurred, would have been unlawful and a felony, but it must be found that the accused committed the assault with intent to take life, for although an intentional or involuntary killing may in some cases be unlawful, and a felony, no man can intentionally do an unintentional act, and without the intent, the assault can not be punished under this statute, even though the killing, had it been committed, would have amounted to a felony.” Under the statute (section 2380 Rev. Stats.) “the unlawful killing of a human being, when perpetrated from a premeditated design to [552]*552effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, or burglary, shall be murder in the first degree; when perpetrated by any act imminently dangerous to another and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, it shall be murder in the second degree.” If an unlawful homicide be perpetrated by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, but from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery or burglary, it is murder in the first degree; 'otherwise it is mjunder in the second degree, even though accompanied by an intent to' kill, provided such intent does not amount to a premeditated design. We are, therefore.- of opinion that where one assaults another with intent to- kill, and the assault is accompanied by an act which, if death had resulted therefrom, would have constituted murder in the second degree, the party committing the assault will be guilty of an assault with intent to- commit the felony of murder ; but if there was no intent to kill, the party committing th’e assault can not be punished for an assault with intent to commit a felony, even though the circumstances were such that had the party assaulted died, the party committing the assault would be guilty of murder in the second degree. The portion of the instruction objected to was erroneous, in that it omitted the requirement that there must be an intent to' kill. For this error the judgment must be reversed.
[553]*553We do not deem it necessary to consider any of the other errors assigned.
The judgment is reversed, and a-new trial awarded.