Lovett v. State

• Citation: 33 Fla. 389,14 So. 837
• Parties: LOVETT v. STATE.
• Decision Date: 06 March 1894
• Court: United States State Supreme Court of Florida

14 So. 837

33 Fla. 389

LOVETT v. STATE.

Florida Supreme Court

March 6, 1894

Error to circuit court, Duval county; R. M. Call, Judge.

Dave Lovett was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where a judgment entered upon a verdict of guilty as charged in the indictment, on a trial, since the Revised Statutes went into effect, of an indictment for murder, has been reversed by this court on writ of error, because the verdict did not ascertain the degree of the crime, and a new trial awarded, the accused can be tried again upon the same indictment, and such second trial will not put him in jeopardy a second time for the same offense, within the meaning of the constitution.

2. The accused was indicted, tried, and convicted of murder in the first degree before the Revised Statutes went into effect. The judgment entered on this conviction was, upon writ of error to this court, reversed, and upon a second trial on the same indictment, after the Revised Statutes took effect, a motion was made to quash the indictment on the grounds that by the said statutes the constituent elements of the offense charged had been changed in this: that the degrees in manslaughter embraced in said offense have been done away with, and that the accused was thereby deprived of rights and benefits secured to him under the law as it existed when the offense was committed; and also that by said statutes the number of peremptory challenges allowed the accused under the former law had been cut down, and the number of such challenges permitted to the state had been increased, to the detriment of the accused. This motion was overruled. Held that the ruling was correct, and that upon the indictment the accused stood for trial under the law in force when the offense was committed, so far as the essential elements of the crime itself were concerned, and that the subsequent law made no changes in this respect as to the offense with which the accused was charged; that, as to the changes in reference to the number of peremptory challenges, they relate to the remedy, and afford no ground for quashing the indictment.

3. Where a motion in arrest of judgment has been overruled, and there is no bill of exceptions, and nothing in the record to show that the grounds alleged in such motion are true, this court cannot assume that they ever existed. The mere recital of them in the motion affords no evidence that they are true.

COUNSEL

R. S. Cockrell, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

MABRY J.

This is the third time that this case has been brought before us on writ of error. Lovett v. State, 30 Fla. 142, 11 So 550, and 31 Fla. 164, 12 South. 452. The verdict on the second trial (31 Fla. 164, 12 So. 452) found the defendant guilty as charged in the indictment, with a recommendation of mercy to the court; and the judgment entered thereon was reversed, and the case remanded for a new trial, because the verdict failed to ascertain the degree of the crime of which the defendant was convicted. Hall v State, 31 Fla. 176, 12 So. 449. When the case was brought on for another trial the defendant interposed a plea setting up his arraignment and the organization of the jury upon the second trial, and the submission of the issue to the jury; evidence on behalf of both the state and defendant being also submitted, and the jury charged to try said issue. The plea further alleges as follows: 'And thereupon, the said evidence being closed, said jury retired under the charge of this court to consider of their verdict, whereupon this defendant became and was entitled to a deliverance from and by said jury, so selected, upon the issue so joined; and this defendant avers that the said jury was discharged from the consideration and determination of said issue without rendering a verdict thereon, and without the consent of this defendant, and without necessity for such discharge.' The proceedings and minutes of the court of record in the cause were referred to and made a part of the plea. A demurrer to this plea was sustained.

The record shows that the jury found the defendant guilty as charged in the indictment, with a recommendation of mercy to the court. The contention of counsel for plaintiff in error is that the verdict of guilty as charged in the indictment amounted to no verdict at all, and that the discharge of the jury upon its rendition operated as a liberation of the defendant. This contention is without legal support. It is based upon the theory that the defendant was twice put in jeopardy for the same offense. It is said by Dillon, J., in State v. Redman, 17 Iowa, 329 'In general, it may be said that jeopardy begins when a trial jury, upon a sufficient indictment, in a court of competent jurisdiction, has been impaneled and sworn to try the cause. * * * But the jeopardy is not considered as attaching in such cases, although the jury has been sworn, if during the trial the presiding judge becomes so ill as to be unable to proceed; * * * or if a juror's illness prevents him from sitting further on the trial; * * * or if the prisoner's sudden illness incapacitates him from attending or managing his defense; * * * or if the jury, after full deliberation, are unable to agree; * * * or if the defendant is erroneously convicted, and obtains a reversal of the judgment. In all such cases he may be put upon his trial again, and cannot claim a discharge or acquittal because a jury has been once before impaneled and sworn to try the cause; and we understand the settled doctrine to be that, where the verdict is a nullity (or so defective that no judgment can be rendered upon it), the defendant may again be put upon his trial, certainly where the verdict was intended to be one of conviction, for in such case it is rather a mistrial than a legal putting in jeopardy.' In the case just quoted from, being for grand larceny, it was necessary, under the law of Iowa, for the jury to ascertain the value of the property, that the court might know with certainty the grade of the offense of which the defendant was convicted. The verdict rendered found the defendant guilty, which was accepted by the court, and the jury discharged. On the motion of the state the verdict was set aside, and the defendant excepted. When the case came on for another trial the defendant pleaded the above facts in bar of further prosecution, and to this plea a demurrer was sustained. The question of the exemption of the defendant from further prosecution was presented to the court, and fully discussed. Many decisions are cited and reviewed in the opinion, and the conclusion that the defendant could be tried again fully sustained. See, also, People v. Travers, 73 Cal. 580, 15 P. 293; People v. Olwell, 28 Cal. 456. In the case of Nolan v. State, 55 Ga. 521, cited by counsel for plaintiff in error, where an accused was put on trial for a capital offense, and,...