Henry v. State
| Decision Date | 27 October 1927 |
| Citation | 94 Fla. 783,114 So. 523 |
| Parties | HENRY v. STATE. [*] |
| Court | Florida Supreme Court |
Error to Criminal Court of Record, Polk County; H. K. Olliphant Judge.
J. M Henry was convicted of maliciously threatening to accuse another of crime with intent to extort money, and he brings error.
Affirmed.
Syllabus by the Court
Conviction supported by substantial evidence, should not be disturbed on appeal, in absence of showing of improper influence on jurors. When the trial court concurs in the verdict rendered by the jury by denying a motion for a new trial, and there is substantial evidence to support the verdict, the appellate court should refuse to disturb it, in the absence of any showing that the jurors were probably improperly influenced by considerations outside of the evidence.
Record held to raise presumption that defendant remained in courtroom during trial, including receiving of verdict. The record shows that the plaintiff in error, the defendant in the court below, was present, was arraigned, admitted identity, entered a plea of not guilty, and that thereupon came the jury (naming them), who were duly tried, elected and sworn according to law, and who, after hearing all of the evidence, the argument of counsel, and the charge of the court, retired to consider their verdict, and afterwards returned in the court with the verdict, which appears in the record. From this record it will be presumed that the defendant remained in the courtroom, as it was his privilege and duty to do, during the entire progress of the trial, including the receiving of the verdict.
Defendant cannot take advantage of own misconduct to vitiate trial; defendant's possible voluntary absence from courtroom when verdict was returned held not to vitiate trial. The defendant cannot properly take advantage of his own misconduct to vitiate a trial and escape punishment. We therefore hold that, if the defendant in this case in the court below was in fact absent from the courtroom at the time the verdict was received, such absence was his voluntary act, in disregard of his duty to his counsel and to the court; that it was only a momentary absence, at a time when no harmful result could accrue to the defendant by reason thereof; and that it had no effect upon the legality of the receiving and recording of the verdict as rendered by the jury.
In capital case, defendant's voluntary momentary absence from courtroom during examination of juror on voir dire held not to require reversal of conviction, in absence of showing of possible harm. In the trial for a capital offense, if an adult defendant, unobserved by the court or its officers, voluntarily goes into a room adjoining the courtroom for purposes of his own, and remains for a very few moments, while a witness for the state is being examined, or while a proposed juror is being examined on his voir dire, the defendant being represented by counsel, such temporary and voluntary absence from the courtroom during the progress of the trial is not a violation of the defendant's organic or statutory rights, and will not cause a reversal of a judgment of conviction that is amply supported by competent evidence, and it does not appear that the defendant could have been harmed or prejudiced by his voluntary absence for such a brief time during the trial.
Recalling jury, after filing and recordation of verdict, and having it re-render verdict, held not to affect legality of trial and conviction. The recalling of the jury some time after the verdict had been filed and recorded, and having the jury to return to the jury room and rerender the verdict, was without force or effect, had no bearing on the illegality of the trial and conviction, and in no way affected the defendant's legal rights.
COUNSEL C. E. Kensinger and John S. Edwards, both of Lakeland, for plaintiff in error.
Fred H. Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.
In this case the plaintiff in error was convicted under provisions of section 5092, Revised General Statutes of Florida, of the offense of verbally maliciously threatening to accuse another of crime with intent thereby to extort money from the person so threatened, and was wentenced to serve a term of one year at hard labor in the state prison for such offense, to which judgment he sued out writ of error to this court. After the verdict was rendered finding the plaintiff in error here, the defendant in the court below, guilty, counsel for the defendant contended that the defendant was absent from the courtroom at the time the verdict was returned by the jury, and further contended that such absence vitiated the trial, and that no valid judgment could be predicated on that verdict. Evidence was introduced pro and con as to whether or not the defendant was absent from the court room at the moment the verdict was received. It appears from the record that the trial judge was somewhat impressed that there might be something of importance in the contention of the defense, and later, after the jury and been discharged, recalled the jury, and, in the presence of the defendant, returned to the jury the verdict which had theretofore been delivered by the jury and recorded, and instructed the jury to retire to the jury room, and, if such was still their verdict, to return it to the court in the presence of the defendant. This was done. To all of this latter procedure the defendant excepted.
There are eight assignments of error, all of which may be disposed of under three heads:
First, it is contended that the verdict was not supported by the evidence, and was contrary to the evidence.
Second, it is contended that the record shows that the defendant was not in the courtroom at the time the verdict was returned by the jury and received by the court, and that because of such absence no valid judgment could be based upon such verdict.
Third, it is contended that the court erred in reconvening the jury, after the verdict had been recorded and the jury discharged, and requesting the jury to retire to their room, and, if such remained their verdict, to return same to the court in the presence of the defendant.
The record discloses sufficient substantial evidnce to support a verdict of...
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...269; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500; McClendon v. State, 36 Okl. Cr. 11, 251 P. 515; Henry v. State, 94 Fla. 783, 114 So. 523; Sobieski v. State, 126 Tex.Crim.Rep. 405, 71 S.E.2d 534; 100 A.L.R. 479; State v. Bramlett, 114 S.C. 389, 103 S.E. 755; Vicks v. St......
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...will not be permitted to take advantage of his own misconduct when he has voluntarily absented himself from the trial. Henry v. State, 94 Fla. 783, 114 So. 523. It is one thing for him to absent himself when he is liberty and can voluntarily do so, and quite another thing for the court to d......
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