Mabry, J.:
The plaintiff iu error was indicted on the 10th day of May, A. D. 1893, during a, term of the Circuit Court for Hillsborough county, for the murder of Samuel Kelly, aud was convicted on the 15th day'of the same month, of murder in the first degree as charged in the indictment. Before arraignment and trial, defendant filed a plea in abatement, and it appears that after a demurrer on the part of the State had been sustained as to a part, and overruled as to the remainder of this plea, defendant asked leave to withdraw the plea filed, and to interpose an amended plea .in abatement then presented, which was granted on condition that the demurrer to the plea withdrawn and the ruling of the court thereon should apply to the amended plea. [511] The condition of the record as to the plea in abatement is that the defendant filed such plea alleging that the indictment returned against him was found by an illegally constituted grand jury, as follows: That the board of county commissioners for Hillsborough county did not make out a list of not less than four hundred and seventy-five, nor more than five hundred names of registered voters who had paid their last assessed capitation tax, to serve as jurors, and cause such list to be signed by the chairman of said board and forthwith delivered to the clerk of said court prior to the finding and return of the indictment against defendant; that said clerk did not at least fifteen days before the sitting of the said term of court ■draw from any box containing not less than four hundred and seventy-five, nor more than five hundred, names of registered voters, or supposed- registered voters, the names of twelve persons to serve as grand jurors at said term of court; that the time and place of of drawing the names of. twelve persons to serve as grand jurors for said term of court were not ■advertised by written notices posted in three public places in said county ten days' before the day on which the names of such persons were drawn from a box by the clerk of said court; that said grand jury did not select one of their number to be and to act as foreman of said jury; and that no written ■order was filed by the Circuit Judge with the clerk of the court directing that a grand jury be summoned to attend and serve at said term of court. A demurrer filed by the State was sustained, as we understand the record, to all the grounds of the plea except as to the allegations in reference to the notice of drawing the grand jury, and that the grand jury did not elect a foreman, and as to these the demurrer was overruled. [512] The State then filed a replication alleging that notice-of the drawing of the grand jury that presented the indictment against the defendant was given by posting-written notices in three public places in Hillsborough county ten days before the 17th day of April, 1893, when said jury was publicly drawn in the court-house-in said county, and that the grand jury did elect one-of their number, to-wit: Henry H. Scarlett, as foreman of the jury, “as shown by the records of this court.” The defendant moved to strike out the words in quotation marks, and this motion was overruled. Defendant joined issue upon the replication and demanded a trial of the same by jury, but the court declined to call a jury, and upon hearing overruled the plea in abatement. The rulings of the court sustaining the demurrer to the extent mentioned, refusing to strike out the quoted words in the replication, declining to submit the issues to a jury, and overruling the plea in abatement, are assigned as errors.
The case was tried before the act of 1893, Chapter 4122, became law. By the second section of the act of 1891, Chapter 4015, the boards of county commissioners of the several couuties of the State were directed at meetings to be held the first week in January of each year, or as soon thereafter as practicable, to select from the list of registered voters who had paid their last assessed capitation tax in their respective counties, a list of not less than 290, or more than 310, persons properly qualified to serve as jurors, and possessing certain qualifications mentioned in the act, and which lists shall be signed by the chairman of' such boards and forthwith delivered to the clerk, and by him recorded in the minutes of the board. The following provisos are added: ‘ ‘Provided, however, that in counties where county criminal courts now [513] exist or may hereafter be established, the county com- - missioners of said counties shall make out a list of not-less than four hundred and seventy-five (475), ñormore than five hundred (500), names of registered, voters, who have paid their last assessed capitation, tax, to serve as jurors; provided, that if in any of the-counties of the State the county commissioners shall, not be able to select the number required by this section, they shall be authorized to select a less number,. to be the highest number possible.” On the 10th day of April 1893, the act creating the Criminal Court of Record for Hillsborough county went into effect, and. it is contended by counsel for plaintiff in error thatr after this date the box from which the jurors were* drawn should have contained not less than 475, nor-more than 500, names. It is not stated in the plea before-us that the county commissioners for Hillsborough, county did not prior to the passage of the act creating ; the Criminal Court of Record for that county select, the list of jurors as required by the act of 1891, and; the legal presumption is that they had done so. They were directed to perform this duty at the meeting to. be held the first week in January, or as soon thereafter as practicable, and the presumption is that they performed their duty. The statute of 1891 contemplated annual selections of jury lists on the part of the county commissioners, and in making a list for any year they were of course governed by the law in force at the time of selection. The proviso in reference to-selecting a jury list in counties where Criminal Courts, of Record exist, contemplated that such courts existed or had been established at the time of the annual selection of such list by the commissioners. The creation of a Criminal Court of Record in any county after [514]*5141 the selection of a jury list for the year would not affect " that list, nor would it affect the official action of the commissioner’s until the time arrived for' the selection ► of a jury list for the succeeding year. This being the "’case, it becomes apparent that the first and second f grounds of the plea are' bad, and the action of the "•court in sustaining the demurrer as to them was proper. These grounds of the plea are faulty in other respects. While it is alleged that the county commissioners did not select a list of jurors of not less ■> than 475, nor more than 500 names, and that the clerk ■ of the Circuit Court did not fifteen days before the sit- ' ting of the court draw from a box containing such num;ber of names twelve persons to serve as grand jurors, itis not shown how the action of the commissioners and ■■ the clerk in the particulars mentioned affected the in- - dictment returned against defendant. It is not alleged that the indictment was found by a grand jury ■• drawn from an illegal list or box, or that said grand “jury was drawn from any box. In the event a grand ; jury has not been properly drawn or summoned to attend a term of court, the judge has the power in term " to have a jury drawn, or to direct the summoning of -one from the body of the county at large. The greatest accuracy and precision are required in pleas in •abatement setting up irregularities in the selection or '■drawing of jurors, and such pleas must be free ■ from uncertainty and ambiguity. Reeves vs. State, 29 Fla., 527, 10 South. Rep., 901.
Section 2804 Rev. Stats, provides that “in counties wherein Criminal Courts of Record are established, no ;grand jury shall be summoned to attend at any term •of the Circuit Court, unless the Circuit Judge shall 'file with the clerk a writren order directing a grand jury .to -be summoned.” The last ground of the [515] plea to which, the demurrer was sustained, alleges that no such order was filed with the clerk directing ■that a grand jury be summoned to attend and serve at the term of the court when defendant was indicted. When a Criminal Court of Record is established in a county the Circuit Court ceases to exercise original jurisdiction in criminal cases arising therein, •except capital offenses, and when no such offense has been committed in the county since the preceding term of the Circuit Court, the necessity for a grand jury •may not exist. The purpose of this statute is to save the expense attending the summoning of a grand jury •at a term of the Circuit Court in counties where Criminal Courts of Record exist when none is needed. The Criminal Court of Record for Hillsborough county was established on the 10th day of April, 1893, and the Spring term of the Circuit Court for that county •convened on the 8th day of May following. The third section of the act of 1891, Chapter 4015, provides that “at least fifteen days before the sitting of any regular term of the Circuit Court at which a jury shall be required, the clerk of the court, in the presence of the county judge, or in his absence a justice of the peace of the county, and the sheriff or a deputy sheriff of the county, shall proceed to draw from the box the names of twelve persons to serve as grand jurors at such court.” The plea does not allege that the grand jury for the Spring term, 1893, of the Circuit Court for Hillsborough county was not drawn and summoned before the Criminal Court of Record for the county was established; furthermore it was not intended by 'Section 2804 of the Revised Statutes, directing a written order to be filed with the clerk for the summoning ■of a grand jury,- to limit or regulate the power of the ■court in term time in reference to the organization of [516] juries. When the court meets in session if it should be ascertained that no grand jury had been properly' drawn or summoned, one can then be ordered in accordance with statutes on the subject, and the order recorded upon the minutes of the court. The plea alleges that no written order of the judge was filed with the clerk directing that a grand jury be summoned to attend and serve at the term of the court-when defendant was indicted. The plea does not ex-' elude the presumption that the indictment was presented by a legally constituted grand jury. State vs. Brooks, 9 Ala., 9. It does not allege that the grand jury that presented the indictment ,was drawn and summoned after the creation of the Criminal Court of Record for Hillsborough county when it became the duty of the Circuit Judge to file the order for the summoning of the jury, or that the court did not properly in term time make all necessary orders in reference to the organization of said jury. Pleas in abatement setting up mere irregularities in the drawing and summoning of juries are not looked upon with much favor by the courts, and strict rules of pleading are enforced as to them. The court did not err in sustaining the-demurrer to this ground.
The demurrer was overruled as to the other two-grounds of the plea, and the issues joined on them were disposed of by the court. The first of these grounds alleges that the time and place of drawing the names of twelve persons to serve as grand I jurors for the term of court when defendant was I indicted, were not advertised by written notices posted in three public places in said county for ten days before the day when the names of such persons were-drawn from a box by the clerk of said court. Prom what has already been said it becomes apparent that [517] this ground of the plea is also faulty, and the demurrer should have been sustained as to it. It simply'"alleges that there was no advertisement of the time and place of the drawing of the names of twelve persons from a box by the clerk to serve as grand jurors for the term of court, but how this affected the indictment returned against the defendant is not shown. The court, however, overruled the demurrer and the State Attorney replied that notice of the drawing of the grand jury that found the indictment against the accused was given by posting written notices in three public places in the county ten days before the 17th day of April, 1893, when said jury was publicly drawn in the court house of said county. Issue was joined •on this, and on trial by the court was found in favor of the State. Accepting here as was done by the •court below as an issue tendered on the pleas and replication thereto that notice of the drawing of the grand jury was given in accordance with the provisions of the act of 1891, we must determine whether the court was in error in not submitting such issue to a jury for trial. Our view of the statute of 1891, Chapter 4015, is that the notice therein provided for the drawing of the grand jury required is material, and that a jury drawn without such notice should not be accepted by the court as a properly drawn grand jury. The trial judge in the case before us regarded such notice as essential and required an issue to be made up involving .an inquiry into the giving of such notice. This issue was one of fact resting in pais, and according to the long established rule requiring such issues to be tried by a jury, it should have been submitted to such body for trial. The court tries questions of law, and the jury passes upon questions of fact, and this rule applies to issues on pleas in abatement as well as to [518] other issues. - This common law rule has been recognized and declared by statutory enactment in this State. Section 2904 Rev. Stats. The defendant in the-case before us did not waive his right to have the jury try the issue accepted by the court, but insisted on it, and the refusal of the court to so submit the issue, it-seems to us, was a violation of the rule stated. It may be contended that the giving .of the notice of the drawing of the grand jury under the circumstances alleged in the replication can not constititute the basis of a-material issue in this case for the reason that no authority existed for the drawing of the jury. As appears from what is statqd in the replication, the notice-of the drawing of the jury in question was posted before the date when the Criminal Court of Record for Hillsborough county was established, but the drawing of the jury took place on the sixth day after the one on which the court had its existence. The replication alleges the drawing of the jury on the 17th of April, 1893, but it is not. stated that any order of the Circuit Judge directing-the summoning of a grand jury was filed with the-clerk before the drawing occurred. Where the-clerk is directed by the judge in vacation to summon a grand jury in a county where a Criminal Court of ■ Record exists, it is contemplated that the order shall be given before proceedings are begun by the officers-for the regular drawing of jurors for a term. In the-present case it must be assumed that no order was filed-with the clerk for the summoning of a grand jury before the notice of the drawing was given for the reason* that there was no law then in force making it the duty of-the court to file such order. The giving of the-notice of the drawing of the jury at the time it was-given, was legal and, in our judgment, it dispensed. [519] with the necessity of any written order from the judge-directing the drawing to take place-. At all events we-.are impressed with the view that if the grand jury inr question was drawn after proper notice under the circumstances mentioned, and the court proceeded im term time to organize the grand jury so drawn, it would! amount to a judicial determination of the necessity ofi the presence of a grand jury at the term. The resultt is that the issue presented by the replication to the-plea was material, tendering a question of fact involving the regularity of the drawing of the grand jury that found the indictment against defendant, and the-court should have submitted it to the jury for decision's under proper instructions.
The other ground of the plea upon which, an issue - was made and tried by the court, is that the grand jury did not select one of its members as foreman of that body. The State Attorney replied that the grand jury; did select one of its members, to-witr Henry H.\ Scarlett,, as foreman, as shown by the records of the - court. The motion to strike out the last paragraph of" the replication was properly overruled. Defendant', had the right to test the legal sufficiency of the replication by demurrer, but he had no right to have the-, court to strike out a clause in it, and leave the remaim der as a pleading. The issue tendered on the repli- - cation is that Henry H. Scarlett, a member of the-grand jury, was elected as its foreman as shown by-the records of the court, and this presented an issue, ¡ to be tried by the court on an inspection of the record,', and not one to be submitted to a jury. Chase vs. State, 46 Miss., 683; Atkins vs. State, 16 Ark., 568. Considering the issue on this part of the plea as- we find, it, the court committed no error in its ruling thereon..
[520] The indictment returned against the defendant is ■ endorsed “a true bill,” and signed by Henry H. Scarlett, foreman, and the record of the court in reference to the organization of the grand jury, copied into the ' transcript, recites that the jurors—naming them— having been sworn touching their qualifications as jurors, were found qualified, and that said grand jurors retired to their room in charge of a sworn bailiff to select their foreman, and returned into court and reported that they had elected Henry H. Scarlett as their fore- ■ man. It is then recited that the oath prescribed for •grand jurors was taken by Scarlett and one other 1 member, and after them the proper oath was adminis- ' tered to the others. The defendant introduced Scar- ■ lett and he testified without objection that after the 'members of the grand jury had been examined and ' found qualified to serve as grand jurors, but before ' taking the oath prescribed by law for them to take before entering upon the discharge of their duties as ■ grand jurors, they elected him to act as foreman of the : grand jury, and after he had been elected, the grand . jury returned to the court room and took the oath pre- - scribed by law; that thereupon the court charged them ■ and they retired to their room, elected a clerk and proceeded to investigate the matters brought before • them; and' that there was no election of a member of ; said grand jury to act as foreman after the final oath 1 had been taken as stated. The point that counsel for • defendant insist on under the ground of the plea now : being considered is that before a grand jury is sworn it can not elect a foreman or do anything else in the • capacity of a grand jury. The statute provides that ‘ “the grand jury shall select its own foreman,” sec. "2809 Rev. Stats., and it is contended that a grand jury iim contemplation oí this statute means a duly organ[521] ized and sworn body. Whatever force there may be in this view, it can be of no avail, we think, to the defendant in this case. The record shows that Scarlett acted as foreman of the grand jury after it was duly organized and sworn, and that he was so recognized by that body as well as the court. This, in our judgment, would be a ratification of the former election, if it was not competent for the grand jury to make the selection when it did.
There are many assignments of error made in this case based upon the drawing, summoning and empaneling of the petit jury that returned the verdict against the defendant, but in view of the fact that the judgment must be reversed on account of the error shown, and another that will be pointed out, we refrain from any discussion of these assignments of error. What is here said is deemed sufficient to guide the court in reference to the objections as to the validity of the indictment.
The error referred to relates to the exclusion of testimony desired to be brought out on behalf of the ■defendant. The deceased was shot in a small room by the defendant as the latter was leaving the room, and as he was at or near a door opening into the room. There was evidence of a difficulty between these parties in the room before the shooting. The defendant in his statement said that he was struck in his left side-by the deceased without provocation and tumbled over :a chair, and when he fell over, deceased rushed up and kicked him in his left side, and drew a knife on him. In rebuttal .the State introduced a witness who stated that he was in the room at the time of the difficulty between the deceased and defendant. He was asked if the deceased kicked the defendant during any part of the difficulty, to which the witness [522] replied, “I never saw him.” He was requested to answer yes or no, and he said “no.” He also stated that if the deceased had kicked defendant he (witness) would have seen it. On cross-examination counsel for defendant asked the witness if he saw the deceased strike the defendant, and on objection of the State the question was excluded. Exception to the ruling of the court was properly made, and the ruling is assigned as error here. We do not see how this ruling can be sustained. The question excluded bore upon a material phase of the defense. According to the defendant’ s statement the fatal shot was fired immediately af • ter he had been knocked over a chair, kicked in the side and pursued by the deceased to the door with a knife in his hand. It was competent and clearly material for the defendant to show, if he could, that the deceased struck him in the room just before the shooting, and such evidence would be proper on the question of premeditation, if for no other piurpose. It is directly connected with the examination in chief and relates to a part of the same transaction there brought out. It was error to exclude this question. Williams vs. State, 32 Fla., 315, 13 South. Rep., 834. We-have not fully considered the special charge given to> the jury by the court at the instance of the State, but deem it proper to call the attention of the court to it for further consideration, should it be requested on another trial.
The judgment is reversed and a new trial awarded,, and it will be so ordered.