
RANDALL, O. J.,
delivered the opinion of the court.
The first question which arises in this case, under the assignment of errors, is whether the plea in abatement to the indictment should have been sustained. The plea sets up substantially that there was a deficiency of grand jurors on the first day of the term, and that to supply such deficiency the court ordered the names of ten persons to be drawn from the list of jurors furnished by the Board of County Commissioners, which was done by the County Judge, the Clerk of the Circuit Court and the Sheriff, instead of by the Clerk alone; that on the second day of the term, one of the persons who had been regularly drawn and summoned as a grand *516juror not appearing, the sheriff summoned one of the persons-drawn on the first day of the term in his place. The statute controlling this subject provides that “ in case of a deficiency of grand jurors in any court, writs of venire facias may be issued to the proper officer to return forthwith such further number of grand jurors as may be required.” The law authorizes a special venire in case of a deficiency of grand jurors, and without prescribing any method by which the persons are to be selected, simply provides that it shall direct the proper officer “ to return forthwith” the required number of grand jurors. It is not denied here that there was a “ deficiency” within the meaning of the law. It is not denied that the venire was properly issued, or that it was served by the proper officer. The point made is that the sheriff, in selecting the individual, was not left entirely unrestricted in the exercise of his judgment, but was confined in his selection to one of ten men who, upon a previous day, had been drawn and selected from the persons designated as suitable to be jurors for the year by the authority upon whom that duty devolved. It is apparent that the law does not prohibit this limitation by" the court of the judgment of the sheriff in the matter of selection. It does no more than direct him to return enough men to make up the deficiency, prescribing no method oí selection and leaving the power and authority of the court over the matter unrestricted.
The whole matter is, therefore, reduced, to this question: Can the court under such circumstances thus direct the sheriff?
Under our jury system, .the law contemplates an annual selection of three hundred persons from the list of registered voters, who are to constitute the body from which the several juries are to be drawn, and in selecting persons from this number to constitute grand and petit juroi’s, the law is so framed as to render' it impossible for any officer of the court to organize a jury in which there is a single person, who has been arbitrarily chosen or selected by him. We *517thus see that the general purpose of the Legislature was to condemn the system of open venires, and restrict the officer in his selections to persons designated as suitable by another power, such designation being made by a drawing where there was no opportunity of knowing who would be the person selected. In the present case the court, instead of permitting the sheriff to make his selections from the body of the county, restricted him to such men as had been selected for the year and to a number drawn by the clerkj sheriff and county judge, in the manner provided for drawing the original jurors. There is no statute which prohibits this. There is no statutory provision to the effect that this selection shall be left to the discretion of the officer. This action of the court is in entire harmony with the spirit and intent of the law, is within its inherent power over the subject-matter, and subserves a good purpose in preventing the summoning of jurors who are loitering about the court house from idle curiosity, often with the desire and purpose of being selected in order to receive the compensation attached to the discharge cf such duty. In the absence of any statute controlling the matter, we think it was clearly within the power of the court to adopt a rule, and we think the rule here adopted, being in entire conformity with the theory upon which the whole system is based, was eminently proper.
The appellant assigns as further error in the proceedings and trial, that the court refused to give the jury the instructions asked for by him, and that the court read from the statutes of 1868 the statutory definition of murder in the first, second and third degrees, and then instructing the jury verbally, and not reducing it to writing, as to the punishment prescribed for the crime, and what the statute said as to a general verdict.
We cannot discover these alleged errors, because it nowhere appears in the record that the appellant asked that ¡the instructions should be given to the jury, or that the *518judge read from the statute, or that he gave them any verbal instructions. It is true that counsel in his motion for a new trial made these matters grounds of his motion, and! that the motion was denied; but whether it was denied upeai the merits of the ground relied upon, or because no such instructions were prayed for, or that the other assumed facts-did not exist, does, not appear. The record should show affirmatively that the alleged proceedings and facts relied; upon actually occurred, and that the appellant excepted thereto. The recital in the motion made to the court is not-evidence to us that the grounds of the motion had any existence in fact.
The other grounds relied on by the appellant for a re versal of the judgment are that the court refused a new triaB •upon the alleged erroneous instructions to the jury in the charge,of the court, which is gsutton@example.net. The material points are that the court instructed the jury as follows.;. “ The killing proved, even though nothing else be shown,, the offence is murder • the burthen of extenuation being then thrown on the accused;” and, “ If you find the prisoner guilty, it is for you to say from the evidence whether he is guilty of murder in the first, second or third degree. If you believe from the evidence he is not guilty in cither degree, you will return a verdict of not guilty.”
The jury under this instruction found the appellant guilty of murder in the first degree.
The statute of 1868, upon the subject of homicide, pro - vides as follows:
“ The killing of a human being, without the authority off law,, by poison, shooting, stabbing or any other means, or in any other manner, is either murder, manslaughter or excusable or justifiable homicide, according to the facts and circumstances of each case.
“ Such killing when perpetrated from a premeditated! design to effect the death of the person killed, or of any human being, shall be murder in the first degree j * * 'v' *519when perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree; * * when perpetrated without any design-to effect death, by a person engaged in the commission of any felony shall be murder in the third degree.
“ The killing of one human being by the act, procurement or omission of another, in cases where such killing shall not be murder according to the provisions of this chapter, is either justifiable or excusable homicide or manslaughter.”
The statute then proceeds to define what shall be deemed justifiable or excusable homicide, and manslaughter, the latter being divided into four grades or degrees.
This court on several occasions has held that such an instruction as that given in this case is erroneous, to-wit: “ the killing being proved, even though nothing else be shown,, the offence is murder, the burthen of extenuation being then, thrown on the accused.”
In Holland vs. the State, 12 Fla., 117, Gladden vs. the State, 13 ib., 623, and Dixon vs. the State, ib., 637, it is laid down that the killing being proved, all the circumstances oí accident, necessity or infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced by the prosecution. The instruction given limits the defence to the facts which he shall be able to produce, and deprives him of the benefit of the evidence adduced by the State, which, perchance, may have shown that the killing was excusable or justifiable, or that the crime was manslaughter, and is too clearly error to require any further demonstration than the mere statement of the proposition..
But we are not satisfied that the rule as stated in the two-cases last referred to is correct in another respect. In the case of Holland vs. the State, the rule of the common law as to the burthen of proof was correctly given. That case occurred before the enactment of the law of 1868, which de*520fines the crime of murder in the several degrees into which it is thereby divided, and the crime of manslaughter, which it also divides into several grades ; and the several classes of justifiable and excusable homicide, which it also defines with much particularity. But the cases of Gladden and Dixon, though occurring since the passage of the act referred to, were decided upon the exception taken that the charge of the court deprived the accused of the benefit of a defence which may have been found in the testimony adduced by the State, and without reference to the changes wrought by the recent statute, the language of which we have quoted above.
In the cases of Gladden and Dixon we gave the rule, as we understood it, of the common law, which rule we think is essentially changed by this statute. In those cases we held substantially that the fact of killing being proved, the offence of murder is established, and the accused must show the circumstances reducing the crime to a lower grade, or that the killing was justifiable or excusable, unless such circumstances appeared from the proofs on the part of the State. In considering the statute, it seems to us that this rule of the common law, as to the implication of premeditation and malice as a legal deduction from the mere proof of the act which results in death, is essentially superseded, and that under this statute no man may be convicted of murder without due piroof that the crime has been committed, or, in other words, that the proof of the act must bo such that malice may be legitimately inferred by the jury as a question of fact “ from the circumstances of the case.” For, says the common law, if one man kill another, the offence is murder, malice being presumed, from the fact of killing. But, says the statute, “ the killing of a human being without the authority of law, is either murder, manslaughter or excusable or justifiable homicide, according to the facts and circumstances of each case.” And then the statute goes on to say what character of facts and circumstances shall constitute each particular degree of crime, or justifiable or excusable homicide.
*521If every homicide shall be presumed to be murder until the perpetrator show that the act is not murder, this emasculates the statute; for the design of the statute is to require that the degree or quality of crime shall be'established by the proofs. The common law says the killing is murder; the statute says the unlawful killing is murder, manslaughter, or not criminal at all, according to the facts and circumstances. And so it is to be ascertained from all the facts and circumstances whether any crime has been committed, and it cannot therefore be allowed that a man shall be adjudged guilty of the highest crime upon proof of only one of the ingredients, the single fact of killing being but one ingredient of the crime. The very terms of the classification of the different degrees of murder and manslaughter, and of justifiable and excusable homicide, require something more’ than the proof of the killing, because it cannot be determined without a consideration of all the “ facts and circumstances of each case ” whether the act be murder or manslaughter, or the criminal intent be entirely wanting. The.. degree of crime, the quality of the act, must, under this statute, be determined, not alone upon a general presumption from an act, but upon the application of reason and judgment to all the facts proved, and thus to determine with what mind and intent the act was committed. It is not assumed that all presumptions must be ignored, or that no presumptions can be invoked in establishing the criminal intent, but only that under this statute the presumption must be one of fact, to be drawn by the jury from the proof of the circumstances attending the homicide, and not from the homicide alone. The principle involved is that all presumptions are in favor of innocence, and that the animus must be inferred from the manner of the commission of the act, and the conduct of the accused, and other circumstances of the case.
The indictment in this case charges specifically that the accused feloniously, wilfully, without authority of law, *522from a premeditated design to effect the death,” &c., in the very language of the statute. The act is substantially a transcript of the statute of New York, and it was held in People vs. White, 24 Wend., 520, that where, in an indictment for murder, the crime is charged to have been commitifced with a premeditated design to effect the death of the ¡person killed, the premeditated design, or express malice, must be proved, although the act be also charged to have Peen done with malice aforethought. Such a description •cannot be rejected as surplusage. (See also State vs. Turner, Wright, Ohio, 30.)
In a recent case in the Court of Appeals of New York, (Stokes vs. the People, 1873,) the court, Grover, J., says: '.The instruction in effect was that the law implied motive, land consequently the crime of murder in the first degree from the proof of killing the deceased by the prisoner, and that upon this proof they should find him guilty of that crime, unless he had given evidence satisfying them that it was manslaughter or justifiable homicide. * * 'x' This rule can be upheld by authority only, as it is obviously in contravention of principle and the analogies of the law. It is a maxim in the law that innocence is presumed until the contrary is proved. Ilow is guilt established by proof of only one of the ingredients essential to constitute crime 1 To constitute crime there must not only be the act, but also the criminal intention, and these must concur, the latter being equally essential with the former. Actus non rerum facit, sed mens. is a maxim of the common law. The intention may be inferred from the act, but this, in principle, is an inference of fact to be drawn by the jury, and not an implication of law to be applied by the court. (For a very able and interesting discussion of the subject, we refer to the American Law Eeview, October, 1873, Boston.)
It will be noticed that the judge further charged the jury, u If you find the prisoner guilty, it is for you to say from the evidence whether he is guilty of murder in the first, sec*523«@nd or third degree. If you believe from the evidence he sis not guilty in either degree, you will return a verdict of not .¡guilty.” This is manifestly erroneous, for in terms the jury .are precluded by this instruction from finding the accused ¡guilty of manslaughter in one of its degrees, and hence, as .they did not find him guiltless, they were forced to find him ¡guilty of murder. The court should have given to the jury the provisions of the statute as to the crime of manslaughter, and allowed them to find a verdict of manslaughter if they «aw fit.
The judgment of the Circuit Court is reversed, and a new ■trial awarded.
