SHACKLEFORD and HOCKER, JJ., con

cur.

thereto, and went with him in person and of block 198, La Villa, purchased by the introduced him to all the tenants occupying complainant for and in the name of his said the premises, and told each of them of his son, John Nobles, during the latter's minorsurrender of said premises, and that they ity. The costs of this appeal to be taxed should from that time forward attorn to against the appellees. him, L'Engle. This denial and allegation in the defendant's answer was a most material issue in the case, and the proofs disprove it overwhelmingly. This being true, the whole answer of the defendants lost its weight as evidence, and became nothing more than a pleading in the cause. An answer, contradicted in a material point, loses all weight as evidence, and serves the purpose only of a pleading in the cause. Prout v. Roberts, 32 Ala. 427; Gunn v. Brantley, 21 Ala. 633; Countz v. Geiger, 1 Call (Va.) 190; Phares v. Leachman, 20 Ala. 662.

WHITFIELD, C. J., and PARKHILL, J., concur in reversing the decree.

COCKRELL, J., took no part, being disqualified.

WHITFIELD, C. J. The aid of a court of equity to enforce the specific performance of a contract to convey real estate is not a matter of right, but it may be granted in sound judicial discretion, governed by established principles of law designed for the administration of justice. Taylor v. Florida East Coast R. Co., 54 Fla. 635, 45 South. 574, 16 L. R. A. (N. S.) 307, 127 Am. St. Rep. 155; Asia v. Hiser, 38 Fla. 71, 20 South. 796; 10 Current Law, 1674.

If there is no adequate remedy at law, and a contract is valid, definite, complete, and capable of being mutually enforced with practical and just results, and the complainant is not in laches, and is not estopped by judgment or by matters in pais, and there is no countervailing equity, the contract may be specifically enforced according to its valid purpose upon such equitable terms as the facts will warrant. When a complainant shows by proper allegations and a clear preponderance of unequivocal evidence that he is equitably entitled to the specific performance of a contract to convey land, and offers to do equity, and no laches or opposing equities appear, the contract should be specifically enforced, that justice may be done. 10 Current Law, 1690; 6 Current Law, 1508.

The decree of the court below in said cause is hereby reversed, and the cause remanded, with directions for the entry of a decree adjudging the complainant to be entitled to a deed of conveyance from the defendant executrix of F. F. L'Engle, deceased, to fractional lot 5 in block 198, La Villa, a subdivision of the city of Jacksonville, and ordering said deed to be executed and delivered, and requiring the defendant Claude L'Engle to surrender to the complainant the possession of all of said lots, and requiring him to account fully for all of the rents, income, and profits of all of said lots since he took possession thereof, and out of the amount found upon such accounting to be due from him that so much thereof as may be necessary be applied to the payment of any net balance due to the estate on the agreed purchase price of the lot described as the north third of the west half of lot 4 of said block 198, and for the agreed rental thereof and taxes and water bills thereon, and if the amount found to be due from said defendant Claude L'Engle shall be found sufficient to pay such balances in full that the said defendant executrix be decreed to execute and deliver a deed to the complainant for said last-described lot, but if such amount be not sufficient to pay all of said balances in full that then the complainant shall be decreed to pay by a short day such amount as may be lacking, upon the payment of which the defendant executrix shall be required to execute a deed to the complainant to said last-described lot, and if the amount found to be due by said defendant Claude L'Engle on such accounting be more than sufficient to pay all of said balances in full that a decree be rendered against him in favor of the complainant for any such overplus, or such overplus may be decreed to be applied, at the option of the complainant, towards the pay-defendant to sustain his averment by a prement of any balance remaining due for the agreed purchase price and the agreed rents, taxes, and water bills by the complainant's son, John Nobles, upon the lot described

By the law of the forum, where the oath is not waived, the direct, unequivocal, responsive averments of an answer under oath to a bill in equity are evidence for the defendant, and are decisive, unless overcome by something more than the testimony of one witness. Where a complainant in equity calls for an answer under oath, the competency of the defendant as a witness, and the credibility of the defendant's testimony as one witness, are thereby conceded, and cannot ordinarily be questioned; but the probative force of the answer may be overcome by evidence. If a material responsive averment in an answer in equity is directly and unequivocally contradicted by more than one witness, it is then incumbent upon the

ponderance of the evidence, either by the production of other evidence, or by the im peachment of opposing evidence or otherwise; and if the testimony that overcomes

410

deficit by a short day, and upon his payment [ grand jury, when so found, "A true bill," is thereof, in such event, that the defendant ex- waived, unless made before pleading-semble. ecutrix of F. F. L'Engle, deceased, be de- 5. CRIMINAL LAW (§ 280*)-PLEAS IN ABATEcreed to execute to him a deed in fee to said lot. The costs of this appeal to be taxed against the appellees.

MENT-SUFFICIENCY.

The settled rule in this court is that in pleas in abatement, setting up simply irregularities in the selection of jurors, the greatest accuracy and precision in pleading are required, and such pleas must be certain to every intent. SHACKLEFORD and HOCKER, JJ., con- They must leave nothing to be supplied by intendment, and no supposable special answer unobviated.

cur.

[Ed. Note.-For other cases, see Criminal WHITFIELD, C. J., and PARKHILL, J., Law, Cent. Dig. §§ 647, 648; Dec. Dig. § 280.*] concur in reversing the decree.

COCKRELL, J., took no part, being disqualified.

WHITFIELD, C. J. This case is controlled by the decision in another case between the same parties disposed of this day (51 South. 405), and the views expressed in the minority opinion filed in that case are applicable here. In my opinion the decree dismissing the bill of complaint should be reversed and the cause remanded for further proceedings according to law.

PARKHILL, J., concurs.

(58 Fla. 122)

THOMAS v. STATE

(Supreme Court of Florida. Jan. 10, 1910.) (Syllabus by the Court.)

1. HOMICIDE (§ 134*) - INDICTMENT CIENCY.

SUFFI

An indictment for murder sufficiently charges that the defendant struck and killed the deceased with the weapons described, when it charges that the defendant did inflict several mortal wounds in and upon the head of the deceased, by striking him in and upon his head with certain named and described deadly weapons that the defendant then and there held in

his hands, etc., and that the deceased died of

these mortal wounds so inflicted.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 213, 214; Dec. Dig. § 134.*]

2. HOMICIDE (§ 139*)-INDICTMENT - MURDER IN THE FIRST DEGREE.

The form of an indictment for murder in the first degree to be found in Daniels v. State, 52 Fla. 18, 41 South. 609, is approved.

[Ed. Note.--For other cases, see Homicide, Cent. Dig. §§ 232-235; Dec. Dig. § 139.*] 3. CRIMINAL LAW (§ 974*)—ARREST OF Judg

MENT.

The ground of a motion in arrest of judgment, that one J. N. Byrd signed the indictment as foreman, when in fact J. W. Byrd was foreman of the grand jury, is not sustained, where the record and the original indictment show the indorsement to be: "A true bill. J. W. Byrd, Foreman."

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2475; Dec. Dig. § 974.*] 4. WAIVER OF DEFECTS IN INDICTMENT.

Whether the failure to comply with the provision of the statute that indictments shall be indorsed on the back by the foreman of the

INVOLUNTARY 6. CRIMINAL LAW (8 677*) CONFESSION-WITHDRAWAL FROM JURY.

If, after the introduction of a confession, it appear by the subsequent testimony of the defendant that such confession was not free and voluntary, the court should arrest the examination and withdraw the evidence of such confession from the jury.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1605; Dec. Dig. § 677.*] 7. CRIMINAL LAW (§ 1158*) — APPEAL — REVIEW-ADMISSIBILITY OF CONFESSION.

In considering whether the confession is voluntary, the trial judge must determine the facts, even upon conflicting evidence; and the appellate court, when called upon to review his ruling upon such evidence, must accord to his finding the presumption that it is correct.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3074; Dec. Dig. § 1158.*] 8. CRIMINAL LAW (§ 1158*) — APPEAL VIEW-CONFESSION.

RE

What circumstances constitute improper influences, such as will exclude confessions, are questions of law, which may be reviewed by an appellate court; but the credibility of the evidence to prove the circumstances, as well as the credibility of conflicting evidence, are questions for the trial court, not reviewable by the appellate court, unless the court below has clearly erred in its conclusions of facts.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3074; Dec. Dig. § 1158.*] 9. HOMICIDE (§ 232*)-EVIDENCE- PREMEDI

TATION.

The existence of a premeditated design to effect death may be proved by circumstantial ev

sufficient, because it does not affirmatively al- general venire. I

Wherefore the defendant

"Milton Pledger,
"Thos. E. Walker,

lege that the defendant did strike the deceased. prays an abatement of said action.
The indictment sufficiently charges that the
defendant struck and killed the deceased with
the weapons described. It charges that the
defendant, the plaintiff in error here, did in-
flict several mortal wounds in and upon the
head of the deceased, by striking him in and
upon his head with certain named and de-
scribed deadly weapons that the defendant
then and there held in his hands, etc., and
that the deceased died of these mortal wounds
so inflicted.

A form of an indictment for murder in the first degree, passed upon and approved in this respect, will be found set out in full in Daniels v. State, 52 Fla. 18, 41 South. 609. The form to be found in section 520, Bishop's Directions and Forms, may be studied with advantage.

After the trial and conviction of the defendant upon a plea of not guilty, he moved the court to arrest the judgment, among other reasons: "Because the indictment upon which the defendant was convicted is not a true bill returned by the foreman of the grand jury of this court at the Spring term thereof, A. D. 1909."

The defendant contends in support of this ground of the motion in arrest: "It appears that one J. N. Byrd signed the indictment as foreman, whereas J. W. Byrd was foreman of the grand jury; consequently the indictment was not signed by the foreman of the grand jury as required under section 3960 of General Statutes of Florida." This contention is not sustained, either by the transcript of the record or by the indorsement on the original indictment, which was sent here by special or der of the trial judge. As evidenced to us, the indictment is indorsed: "A true bill. J. W. Byrd, Foreman." It has been held that the failure to comply with the provision of the statute that indictments shall be indorsed on the back by the foreman of the grand jury, when so found, "A true bill," is waived unless made before pleading. State v. Agnew, 52 Ark. 275, 12 S. W. 563; Patterson v. Commonwealth, 99 Ky. 610, 5 S. W. 765. See, also, McFall v. State, 73 Ark. 327, 84 S. W. 479; Frances v. State, 6 Fla. 306.

The third assignment of error relates to the ruling of the court upon the demurrer to the plea in abatement.

The defendant filed a plea in abatement, as follows:

"Now comes the defendant, by his attorney, and for plea in abatement to the indictment against him herein says: That the grand jury returning said indictment was not lawfully selected and impaneled as grand jurors in this: That there were thirty-two persons who answered to their names as summoned on the general venire returnable on the first day of this term, and that it appears from the record of this court that the grand jury was selected from only twenty-eight of the

"Attys. for Defendant." The settled rule in this court is that in pleas in abatement setting up simply irregularities in the selection of jurors the greatest accuracy and precision in pleading are required, and such pleas must be certain to every intent. They must leave nothing to be supplied by intendment, and no supposable special answer unobviated. Ford v. State, 44 Fla. 421, 33 South. 301; Colson v. State, 51 Fla. 19, 40 South. 183; Taylor v. State, 49 Fla. 69, 38 South. 380.

Section 1575, Gen. St. 1906, provides that at every regular or special term of the circuit court the judge thereof shall proceed to draw from the box the names of 36 persons to serve as jurors at the next succeeding term of said court, and that on the opening day of such succeeding term, or as soon thereafter as practicable, it shall be the duty of the judge to place the names of 36 persons so summoned, or of so many of them as may appear in response to the summons, in a box, and draw therefrom the names of 18 persons, who shall serve as grand jurors for the term.

Other provisions of the General Statutes exempt from jury duty persons who are over a certain age, or who occupy certain positions or follow certain occupations. By statute, too, certain persons are disqualified as jurors by conviction of certain crimes, or by holding certain official positions and by mental infirmity. Section 3859, Gen. St., provides that any person held to answer to any criminal charge may object to the competency of any one summoned to serve as a grand juror before he is sworn, on the ground that he is a prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution and has been subpoenaed or been bound in a recognizance as such, and, if such objection be established, the person summoned shall be set aside.

It may be that 32 persons answered to their names as summoned on the general venire returnable on the first day of the term of court, as alleged in the plea in abatement, and that 4 of these persons were found to be disqualified or exempt from jury duty, and were discharged or excused from service by the court, and that thereupon the grand jury of 18 persons were selected from the remaining 28 qualified persons so summoned on said general venire. The grand jury so selected and impaneled would be lawfully selected and impaneled, and the plea in abatement filed by the defendant does not obviate or overcome this supposable answer thereto. If for any sufficient cause a grand jury may have been legally drawn from the 28 names of persons so summoned on the general venire, the plea is defective, because it does not al

v. State, 35 Fla. 737, text 802, 18 South. 182, as to the admission of the defendant on the 48 Am. St. Rep. 267. occasion testified about, upon the ground it

Another assignment is based upon the de- is shown that the defendant was put in fear nial of the motion for a new trial. and was under duress at the time of making the statement."

One ground of the motion is: "The court erred in permitting the witness W. A. Lewis to testify to certain confessions of the defendant without laying a proper predicate."

W. A. Lewis was called as a witness for the state, and testified that he knew the defendant and arrested him for murder. Lewis then said:

The motion was denied and defendant excepted.

Mr. Lewis testified: "Finlayson did fire off his pistol two or three times while he had him in custody, because one Jim White and one Dillon, who had gone below- We decided that we would shoot the pistol to let * I

"I had a conversation with Duke Thomas them know. It was a signal. at the time of making the arrest.

"Will Finlayson was present. Will was the first man to speak to him. Will made the arrest. We offered him no inducement or reward to make a statement; neither did we threaten him in any way. As a matter of fact, we tried to get him not to talk. We cautioned him not to talk."

Thereupon the witness was asked: "What did he say?" The witness answered:

told Duke this. I said, 'Duke, you don't have to talk.' He said, 'I can talk if I want to.' Will said, 'Let him talk, if he wants to tell it, Gus.' That's all that was said."

We do not think the court erred in admitting the confession before the defendant testified in regard thereto.

If, after the introduction of the confession, it appeared by the subsequent testimony of the defendant that such confession was not free and voluntary, the court should have arrested the examination and withdrawn the evidence of such confession from the jury. "In considering whether the confession is voluntary, the trial judge must, of course, determine the facts, even upon conflicting evidence; and, when we are called upon to

"A. After we arrested him, we had to walk down the railroad about 300 yards back there. There was nothing said to him until we got him to the buggy. We had no handcuffs. We just tied his hands and set him in the bottom of the buggy. Will Finlayson got in the buggy with him, and I stood up behind. We had to drive 300 yards to get to the Cot-review his ruling upon such evidence, we tondale road, and when we got in the road he said, 'How did you all find out about this?' I said, "They telephoned from Cypress.' He said, "That negro ain't dead.' I said, 'No,' I did not think then he was dead. He said, "That negro ain't dead; he sure is a good negro.' I said, 'What did you kill him with?' He said, 'I killed him with a little piece of piping about that long.' I said, 'Where did you get this piping?"

"By the Defense: Now, if the court please, it seems he was holding out an inducement to testify.

must accord to his finding the presumption that it is correct. What circumstances constitute improper influences, such as will exclude confessions, are questions of law, which may be reviewed by an appellate court; but the credibility of the evidence to prove the circumstances, as well as the credibility of conflicting evidence, are questions for the trial court, not reviewable by us, unless the court below has clearly erred in its conclusion of facts, or, as expressed by this court in Coffee v. State, 25 Fla. 501, text 514, 6 South. 493, 23 Am. St. Rep. 525, unless the

"The Court: Objection is overruled. De- court below 'has transcended its discretion fendant excepts.

"Q. Go ahead."

The witness then proceeded with his testimony without further objection.

We do not think this testimony showed that Mr. Lewis held out an inducement for the defendant to "testify."

and a wrong may have been done thereby."" Holland v. State, 39 Fla. 178, 22 South. 298.

The court below, reconciling this testimony as far as possible, and exercising its power to reject such as it believed not to be credible, found that the testimony of the witness Lewis was true in substance, and did not withdraw the confession from the jury, and we see nothing in the circumstances to justify us in reversing his conclusion of the facts. If the testimony of Lewis is true, the confession was voluntarily made and admissible in evidence. The court did not err in refusing to exclude it.

After the state closed its testimony, the defendant was recalled, and testified as follows: "They say it was Mr. Will Finlayson who arrested me. Yes, sir; that other gentleman was there close by. Mr. Finlayson, he ran up at the time of arresting me, commenced firing it, and cussing me. I thought he was going to shoot me. I told them at the time of the arrest that I was the man who had done the killing. My reason for doing so was because I was afraid of Mr. Finlayson. I was afraid he would kill me, because Mr. Finlayson was cussing and shoot-like every other material fact in the case. ing off his pistol."

Thereupon the defendant moved the court

The court charged the jury in part as follows: "The question of a premeditated design to effect the death of a human being is a question of fact, to be found by the jury from the evidence beyond a reasonable doubt,

But the law does not require that such premeditated design to effect the death be proved