(100 So.) hicle over and upon the streets of the city of Jacksonville." [5] It is in effect contended that the petitioner is denied due process of law because it is asserted that the ordinance does not fix an ascertainable standard of guilt and is not adequate to inform the accused "of the nature and cause of the accusation against him," citing United States v. L. Cohen Grocery Co., 225 U. S. 81, 41 Sup. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045. See, also, Weeds, Inc., v. United States, 255 U. S. 109, 41 Sup. Ct. 306, 65 L. Ed. 537. While the mere provision making it a criminal offense "to exact excessive prices for any necessaries,” or “to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries," may properly be held to deny due process of law, in that the accused is not thereby sufficiently "informed of the nature and cause of the accusation" against him, because the definition of the crime "confines the subjectmatter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides," and "leaves open * * the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against" (United States v. L. Cohen Grocery Co., supra), yet in this case the inquiry involved in a charge of a violation of the ordinance is a limited one. It may with reasonable certainty be ascertained by due course of municipal court inquiry whether the accused committed the offense of driving an automobile upon the streets of the city "while under the influence of intoxicating liquor," even though a question of degree be involved. Nash v. United States, 229 U. S. 373, text 377, 33 Sup. Ct. 780, 57 L. Ed. 1232. See, also, Standard Oil Co. of New Jersey v. United States, 221 U. S. 1, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734. The accused cannot be put to speculation or conjecture as to the offense defined in the ordinance. The definition of the offense fixes a reasonably ascertainable standard of guilt to be ascertained by the ordinary processes used in such cases, and the ordinance does not deny to the petitioner any organic rights as asserted. See State v. Smith, 29 R. I. 245, 69 Atl. 1061; State v. Goldstone, 144 Minn. 405, 175 N. W. 892; Smith v. State, 186 Ind. 252, 115 N. E. 943; Mulkern v. State, 176 Wis. 490, 187 N. W. 190; State v. Rogers, 91 N. J. Law, 212, 102 Atl. 433; Berry on Automobiles (3d Ed.) 1585; Huddy on Automobiles (6th Ed.) § 772. | Brede v. Powers, 263 U. S. 4, 44 Sup. Ct. 8, 68 L. Ed., has no application here, because the provision of the Fifth Amendment of the Federal Constitution, on which the decision with reference to "infamous crime" is predicated, is not applicable to the state or its municipalities. Section 10, Declaration of Rights, of the state Constitution, requiring trial on indictment, relates to "capital crime or other felony." The offense here is not a felony. The ordinance here considered does not authorize imprisonment imposed by the municipal court, to be in the county prison or chain gang, and the sentence of imprisonment in this case is to the city prison farm and not to the county chain gang as in Pearson v. Wimbish, 124 Ga. 701, 52 S. E. 751, 4 Ann. Cas. 501, where the petitioner was remanded to the municipal court for a proper sentence. The sentence here is not to cruel or unusual imprisonment. See Kinkaid v. Jackson, 66 Fla. 378, 63 South. 706. [6, 7] Imprisonment within legal authority is not made cruel or unusual by the nature of the trial, whether by jury or summarily by a judge when so authorized by law; and when the term of imprisonment for violating a city ordinance is similar to that imposed under the law for violating a statute, and the term and nature of the imprisonment are appropriate to suitably and reasonably punish for the offense committed in view of its nature and enormity, it cannot be said that the punishment is cruel or unusual within the meaning of the constitutional inhibition. Where the penalty as imposed is legal, if there is an unlawful enforcement or execution of the penalty that amounts to cruel or unusual punishment, or to other violations of the rights of the person upon whom a legal sentence has been imposed, the law affords appropriate relief and redress. The offense defined by the ordinance relates to the operation of an instrumentality that may be peculiarly dangerous in its use, and the ordinance affects the peace, safety, and welfare of persons on the streets of the city, which is a proper subject of municipal regulation, even to the extent of imposing imprisonment in the city prisons, as authorized by the charter statute, for violations of duly prescribed regulations in the interest of the public safety. [8] The mere fact that under the ordinance the municipal judge may impose a longer term of imprisonment on some offenders than on others within the limits fixed by the ordinance does not affect the validity of the ordinance or the sentence in this case which A similar definition of the offense is con- is the minimum term of imprisonment. See tained in chapter 9269, Acts of 1923. The legal meaning of the definition of the offenses contained in the ordinance is not for decision in this proceeding on the record in this case. Frese v. State, 23 Fla. 267, 271, 2 South. 1. [9] The laws of the state do not require the judge of a municipal court to be an attorney at law; and if the judge of such court is not an attorney at law, his official acts as such judge are not thereby rendered il- 6. Criminal law 1153(4)-Discretion as to legal. Attirmed. WEST and TERRELL, JJ., concur. leading questions not interfered with in absence of abuse. The discretion exercised by the trial court in permitting leading questions and in restricting them will not be interfered with, where TAYLOR, C. J., and ELLIS, J., concur in there has been no abuse of such discretion to the opinion. BROWNE, J., dissents. CRUCE v. STATE. the injury of the defendant. 7. Criminal law 1153 (2)—Ruling that witness of tender years is unqualified not disturbed, where fact to be shown is not disclosed. The ruling of a trial court that a proposed witness of tender years is unqualified by reason of age and inexperience will not be reversed, (Supreme Court of Florida. April 15, 1924.) where it is not shown what fact is intended to (Syllabus by the Court.) 1. Criminal law 279-Plea in bar waiver of irregularity raised by plea in abatement; objections to grand jurors must be by plea in abatement before pleading in bar. Objections to the legality of grand jurors must be made by plea in abatement to the indictment before pleading in bar; by pleading in bar the defendant waives any irregularity that may have been raised by plea in abatement. 2. Grand jury 15-Foreman of grand jury and defendant held not "brothers-in-law." The husband of defendant's wife's sister is not brother-in-law to defendant; two men are not brothers-in-law from the circumstance merely of having married sisters-(citing Words and Phrases, First Series, "Brother-in-law") 3. Homicide 23 (1)—“Murder in second degree" defined. In the trial of an indictment for murder a charge defining murder in the second degree to be the unlawful killing of one when perpetrated by 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, is correct. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Murder in Second Degree.] 4. Criminal law 829(5)—Homicide 300 (7)-When refusal to charge on law of selfdefense not error stated. There is no error in refusing to give requested charges incorrectly defining the law of self-defense, nor when the charges are inapplicable to the evidence, nor when the law of self-defense has been correctly given by the court in its general charge. 5. Criminal law 404(4)-Clothing worn by deceased admissible to show number and lo cation of wounds. Where the state in a prosecution for murder undertakes to show the number and location of the wounds upon the body of the deceased, it is permissible to introduce in evidence the clothing worn by the deceased at the time he was shot, even though subsequently to his death his clothes had been washed and cleaned of the blood and dirt with which they were soiled. Upon a second trial the defendant was convicted of murder in the second degree. The first assignment of error rests upon the order of the court denying the defendant's motion, when he was put upon trial the second time, for leave to file a plea in abatement. The point desired to be presented by the plea was that the foreman of the grand jury of Taylor county, which returned the indictment against the defendant, was the husband of the sister of defendant's wife. Therefore, says counsel for defendant, the foreman of the grand jury and the defendant being "brothers-in-law," the indictment is invalid. The indictment was presented in SepThe defendant had pleaded tember, 1921. not guilty, was tried, convicted of murder in the first degree, obtained a reversal of the judgment, and was put upon trial for the second time on the same indictment in October, 1922. [1] There was no error in the court's ruling. A plea in abatement, presenting objections to grand jurors, is waived by the plea of not guilty. See Green v. State, 60 Fla. 22, 53 South, 610; Colson v. State, 51 Fla. 19, 40 South. 183. (100 So.) Counsel submits neither authority nor ar- [ design to effect the death of any particular ingument in support of his contention that the dividual, then you should find the defendant circumstance of the foreman having married guilty of murder in the second degree." the sister of defendant's wife vitiated the indictment, but asserts that the denial of the motion to allow the defendant to interpose such a plea was a denial of "protection" to him which might have been accorded to a "millionaire." Such expressions are much to be regretted, and, of course, are never appropriate when applied to the courts of justice in our country. All lawyers know, or should know, that justice is administered in a free country according to rule. When a judge substitutes his idea of substantial justice for a rule of law the way may be said to be paved for discriminations between men of moderate or little means and "millionaires"; but that criticism cannot be made, with even a semblance of right, of the honorable circuit court for the Third judicial circuit. The rule, long since established in this state, and resting in sound considerations of justice and public interest, is that objections to the legality of grand jurors may be waived by the defendant, and by a plea in bar he makes such waiver. If the point desired to be presented possessed any merit, it does not clearly appear from the motion why counsel did not present it at the first trial, as he had undertaken the defense two days before such trial. The defendant's lack of "financial means" did not preclude him from informing his counsel that the foreman of the grand jury was the husband of defendant's wife's sister. Such fact was not a ground of challenge to the favor applicable to grand jurors. Section 5954, Revised General Statutes; Peeples v. State, 46 Fla. 101, 35 South. 223, 4 Ann. Cas. 870; Oglesby v. State, 83 Fla, 132, 90 South. 825. [2] The defendant and the foreman of the grand jury were not brothers-in-law from the circumstance of having married sisters. See 1 Words & Phrases, First Series, 885; Farmers' Loan & Trust Co. v. Iowa Water Co. et al. (C. C.) 80 Fed. 467; 1 Pope, Legal Definitions, 177; 1 Bouvier's Law Dictionary, 400; Webster's New International Dictionary of the English Language, 282. But, even if such relation had existed, counsel does not make it at all clear why Mr. Courtney, the foreman, should not have served as a grand juror. The first assignment of error and the second, which presents the same question, are not sustained.. It is objected that such is not the statutory definition of murder in the second degree, but we are not advised by counsel in what the difference consists between the language of the statute and the charge quoted. See section 5035, Revised General Statutes. The defendant, through his counsel, requested the court to instruct the jury as follows: "That, if you find from the evidence in this case that the deceased shot the defendant first, then you should find the defendant not guilty." This request was denied, and the court's action is made the basis of the fourth assignment of error. The fifth and sixth assignments of error rest upon the court's refusal to give the following instructions requested by the defendant: "That, if you find from the evidence in this case that the deceased went to the home of the defendant's, called him out, and unlawfully shot him, then you should find the defendant not guilty. "That, if you find from the evidence in this case, or that if you find from the facts and circumstances in and surrounding the case that the deceased, armed with a deadly weapon, went to the home of the defendant for the purpose of bringing about a difficulty with the defendant, and was killed by the defendant under such circumstances, then you should find the defendant not guilty." [4] There was no error in the refusal by the court to give such instructions. The law of the case, as applied to the facts, was clearly stated in charges given by the court to the jury, who were fully instructed in the Aside from the fact law of self-defense. that the requested instructions were not ap plicable to the evidence, they do not, as abstract propositions, correctly define the law of self-defense. The material facts in the case, which are buried beneath a burden of immaterial matter, are as follows: The deceased, who was a small man in stature, left his house some time during the morning of August 17, 1921, and, stopping for a few minutes at the home of a man named Pridgen, went to a field fence inclosing his lands to make some re This fence was about 150 pairs upon it. yards east of the house occupied by the deA railroad track fendant and his family. lay between the house and the fence. At the point where the deceased was at work on his "If you find from the evidence in this case be- fence the railroad track ran through a cut, yond a reasonable doubt that the defendant unthe dirt being piled on the east, or fence lawfully killed the deceased as alleged in the side, about 4 or 5 feet high. The defendant indictment, and that such killing was perpetrated by an act imminently dangerous to another, came from his house armed with a shotgun and evincing a depraved mind, regardless of loaded with small shot and buckshot, enhuman life, although without any premeditated tered the railroad cut, approached the de [3] The court instructed the jury as follows: ceased, said to him, "I have got you where I want you," and prepared to shoot the deceased, who immediately drew "his gun," a pistol, and both he and defendant fired, each at the other. The deceased was struck and fell. The defendant fired again upon the fallen man; returned to his house; came back to the scene, and again fired upon the wounded man, who was lying in the "fence jam." There was evidence also of a grievance which the defendant held against the deceased and of threats by the defendant to kill him. Some of the threats were made several days before the murder, and one was made on the same day only a few hours before. The defendant's account of the difficulty is different. He said that he was at work in his yard, cutting weeds and grass; that the deceased came to the fence and called him out. When he came to where the deceased was near a wire fence, the deceased pulled his pistol, thrust it against the breast of the defendant, saying, "You G- d- son of bitch, I am going to kill you." He punched the defendant many times in the body with the pistol, forcing the defendant back and forth "partly on both sides" of the railroad. The punching began on the defendant's side of the railroad and ended on the other side, where his shotgun was brought to him by "some" of his "children." Then the deceased fired and the defendant shot him. Upon cross-examination he said they had then gotten back on his side, or the west side of the railroad; that he did not have his gun when the deceased fired. Afterwards when it was brought to him he fired at the deceased once or twice "about the same place." The defendant was wounded in the breast. The requested instructions were deficient in many of the elements of the law of selfdefense. See Barnhill v. State, 56 Fla. 16, 48 South. 251; Owens v. State, 64 Fla. 383, 60 South. 340. Besides, the general charge of the court completely covered the subject. Smothers v. State, 64 Fla. 459, 59 South. 900; Sykes v. State, 68 Fla. 348, 67 South. 121. The seventh assignment of error is as follows: "The court erred in failing to file the requested charges of the defendant's." We find no basis in the record for the assignment. The charges requested and refused were marked by the judge refused. Those which were requested and not refused were given. The record shows which charges requested were given and which refused. State, 58 Fla. 26, 50 South, 621; Coatney v. State, 61 Fla. 19, 55 South. 285; Lester v. State, 37 Fla. 382, 20 South. 232; Bennett v. State, 66 Fla. 369, 63 South. 842. Besides, the evidence independently of the dying declarations amply supports the verdict. See, also, opinion of this court upon the first consideration on writ of error to the judgment first rendered. Cruce v. State, supra. [5] There was no error in admitting in evidence the clothing worn by the deceased when he was shot. See 4 Ency. of Evidence, 276; 5 Ency. of Evidence, 464. The clothing was used merely as tending to demonstrate a fact which was relevant to a fact in issue. It was stated that the deceased was wounded in many parts of his body, and was fired upon while lying upon the ground. The clothing and shoes were used as evidence in support of the fact as to the number of wounds and size of shot used. The clothing was none the less admissible because it had been washed before offering it in evidence for the purpose for which it was used. [6] The wife of the defendant was called by the defense as a witness, and, after telling how the deceased came to the house of the defendant that day and called him out and "cursed him," and the defendant asked him not to do so, counsel for the defendant then suggested to the witness, by way of interrogation, "Mr. Edenfield then brought on the difficulty?" This method of leading the witness into giving her interpretation of the facts as related by her the state attorney objected to, and the objection was sustained. There was no error. Besides, the witness afterwards told in detail the facts which according to her version of them showed that the deceased began the difficulty, although it appeared to be of such a character that its seriousness, so far as the deceased's intentions were concerned, might be well doubted. Because no reason appears why he did not shoot the defendant during the several minutes that it required to force him, at the point of a pistol, jabbing it in defendant's breast and side, across the railroad track and back again. There is no merit in the eleventh assignment. The defendant's counsel asked the defendant, who was a witness in his own behalf, the following questions: "Q. Where did you live in August, 1921? A. I lived on Mr. John Grubb's place. Q. Then you did not live on Mr. Edenfield's place?" Dying declarations of the deceased were admitted in evidence over the defendant's objection. There was no error in the ruling. The last interrogation was objected to by The conditions upon which such evidence is the state attorney, and the objection susreceived were all complied with. See Clem-tained. If there could have been any mamons v. State, 43 Fla. 200, 30 South. 699; teriality in the circumstance of the ownerNewton v. State, 51 Fla. 82, 41 South. 19; ship of the land on which the defendant Ward v. State, 75 Fla. 756, 79 South. 699; lived, he was permitted to state the fact as LUMBER the owner, Mr. Edenfield was not. So the Monroe Albritton was called by defendant as a witness, and stated that during the morning of the day of the homicide he had a conversation with Mr. Edenfield. The record shows that "the jury is asked to retire while this matter is gone into." "Q. Monroe, where was this conversation at; where did you have this talk? A. At his cornA. He said crib. Q. Tell the conversation. that somebody had been pulling up his pinders and breaking his corn, and he was going to look around and walk around for him, and when he found the fellow that was doing it he was going to leave him there; that Mr. Cruce could not be satisfied. Q. There was no other Cruce living around there except Jack Cruce? A. Not that I know of. (The state objects to giving the above testimony to the jury. Objections sustained. Exceptions noted.)" What relevancy such circumstance could that assignment which is numbered 12. [7] Leonard Cruce, a boy six years of age, after being examined by the court as to his qualifications as a witness, and stating that Mr. Chavous, the attorney for the defendant, had told him what to say, the court ruled that the witness was not qualified. There was no error in that ruling. Nor is there any suggestion in the record that the witness knew any fact that was material in the defendant's defense. 4, 1924. Rehearing Denied May 19, 1924.) (Syllabus by the Court.) 1. Mechanics' liens 99(1)-Not essential to validity of written cautionary notice that it expressly claim lien. It is not essential to the validity of a written cautionary notice, required by section 3518, Revised General Statutes 1920, that it expressly claim a lien on the property upon which the material is to be used. 2. Mechanics' liens 99(1)-Not necessary that cautionary notice contain statement of amount due or to become due. Since the lien upon property in favor of a materialman who is furnishing or is about to furnish material may "exist" from the time of the service of a written cautionary notice to secure payment of a running open account for material furnished, which account may vary lidity of the lien that such notice contain a from time to time, it is not essential to the vastatement of the amount due or to become due for such material. 3. Mechanics' liens 99(1)-Cautionary notice held not insufficient because falling to expressly claim lien or to state amount of account. The following written cautionary notice was given to the owner of premises by one furused in the construction of a building: nishing or about to furnish materials to be "Tampa, Florida, May 21st, 1921. "To Dr. T. Truelsen, Owner of Lot Six, Block Ten, West Hyde Park Subdivision, According to the map or plat of Said Subdivision Recorded in the Public Records of Hillsborough County, Florida: "You will please take notice that the Southern Lumber and Supply Company is furnishing, and is about to furnish materials, to wit, lumber and mill supplies, to W. W. Hawkins, contractor, for the erection of a building on the above-described premises. "Southern Lumber and Supply Company, "By T. E. Lucas, Secretary. "I hereby certify that a copy of the within cautionary notice was delivered to Dr. T. Truel[8] The fifteenth assignment of error pre-sen, owner, and P. F. Kennard, agent of owner, sents the question of the sufficiency of the on the 23d day of May, A. D. 1921. evidence to support the verdict. As was said by the court once before in this case the evidence amply supports the verdict. Cruce v. State, supra. "T. Marshall. "At 11:10 a. m. Dr. T. Truelsen, and "At 11:25 a. m. Mr. Phil Kennard." Held not insufficient because of the failure to expressly claim a lien or to expressly state Finding no error in the record, the judg- the amount of the account. ment is affirmed. 4. Former ruling overruled. To the extent that there is inconsistency TAYLOR, C. J., and BROWNE, J., concur. |