State Ex Rel. Landis v. Lewis

• Citation: 160 So. 485,118 Fla. 910
• Parties: STATE ex rel. LANDIS, Atty. Gen. v. LEWIS.
• Decision Date: 30 March 1935
• Court: United States State Supreme Court of Florida

160 So. 485

118 Fla. 910

STATE ex rel. LANDIS, Atty. Gen. v. LEWIS.

Florida Supreme Court

March 30, 1935

En Banc.

Original mandamus proceeding by the State, on the relation of Cary D Landis, Attorney General, in the nature of procedendo against Amos Lewis, as judge of the Fourteenth judicial circuit. Mandamus in nature of procedendo denied.

ELLIS P.J., and BROWN, J., dissenting.

COUNSEL John H. Carter, Jr., of Marianna, for relator.

McClellan & Ray, of Blountstown, for respondent.

OPINION

DAVIS Justice.

This is an original mandamus in the nature of a procedendo brought in the name of the Attorney General of the state, as relator for the purpose of coercing the respondent, as judge of the circuit court of the Fourteenth judicial circuit, to proceed with the trial of a criminal indictment in accordance with the law applicable to a case wherein a judgment of conviction has been reversed by the Supreme Court on writ of error and the cause remanded for a new trial according to law. The facts as disclosed by the alternative writ of mandamus, and the respondent judge's return thereto, are as follows:

On December 13, 1932, one J. P. I. Chance killed one R. J. Flanders in Calhoun county, Fla. At the 1933 spring term of the circuit court of that county, an indictment was duly returned by the grand jury charging said Chance with the first-degree murder of said Flanders. In July, 1933, the defendant Chance was placed upon trial in the circuit court of Calhoun county upon the charge of first-degree murder contained in the indictment.

Prior to the beginning of the trial, the defendant moved the court to quash the regular and special venires summoned therefor, alleging illegality in the filling of the jury box from which the venires were drawn. The motion was overruled, and a jury was impaneled from said venires and sworn, the trial proceeded, and the defendant was convicted of second-degree murder. Judgment was entered against him upon the verdict and upon writ of error sued out by him the judgment was reversed by this court solely upon the ground that he had been tried by an illegal jury.

On January 10, 1935, the case was again called for trial, the state insisting upon a trial of the defendant upon the charge of first-degree murder contained in the indictment. The respondent, as judge of the circuit court of Calhoun county, however, refused, to entertain jurisdiction of the charge of first-degree murder upon the grounds that the defendant Chance had been heretofore put in jeopardy upon the charge of murder in the first degree and acquitted by a jury. Whereupon, upon petition of the Attorney General, an alternative writ of mandamus was issued herein, requiring the respondent, as presiding trial judge, to entertain jurisdiction of the case upon the charges of first-degree murder, or to show cause why he does not do so.

The respondent circuit judge has made his return, stating his reason for not complying with the command of the alternative writ to be that the defendant Chance has been acquitted of the charge of first-degree murder by the verdict of the jury convicting him of second-degree murder. Motion for peremptory writ, notwithstanding the return, has been made by relator.

In support of his motion for a peremptory writ, the Attorney General advances the contention that inasmuch as the verdict of guilty of second-degree murder was on appeal set aside as illegal at the instance of the defendant Chance, who successfully prosecuted a writ of error to the judgment rendered against him at the first trial (Chance v. State, 115 Fla. 379, 155 So. 663), which judgment was reversed because a challenge to the array of the trial jurors was erroneously overruled, that relator has never been placed in jeopardy because of the illegality of the jury which tried him, and that therefore said defendant's constructive acquittal of first-degree murder became a nullity eo instanti the judgment of conviction of second-degree murder was reversed because of an illegally constituted trial jury. To put the proposition another way, the relator's argument is to the effect that defendant Chance has never been legally acquitted of first-degree murder because of the fact that he was never in jeopardy upon the previous trial upon the indictment found against him for murder in the first degree, because no trial jury has ever been legally impaneled to try said defendant at the first trial as evidenced by the reversal of the verdict and judgment on that ground.

At the common law, and under the interpretations in American jurisprudence, including the state of Florida, protection from second jeopardy for the same offense includes immunity from further prosecution where, on a valid indictment in a court of competent jurisdiction, the accused is acquitted by a regularly impaneled jury sworn to try the issue of defendant's guilt. Allen v. State, 52 Fla. 1, 41 So. 593, 120 Am. St. Rep. 188, 10 Ann. Cas. 1085. The rule applies to one who is convicted of a crime less in degree than the offense for which he was indicted. In such instances the defendant is by implication acquitted of the greater offense and may plead the acquittal as a bar to a subsequent indictment for it, even though the conviction of the lesser offense is reversed on appeal. Mann v. State, 23 Fla. 610, 3 So. 207; Ex Parte Vickery, 51 Fla. 141, 40 So. 77; West v. State, 55 Fla. 200, 46 So. 93; Golding v. State, 31 Fla. 262, 12 So. 525; Johnson v. State, 27 Fla. 245, 9 So. 208.

Section 8364, C. G. L., section 6059, R. G. S., reads as follows: 'No person shall be held to answer on a second indictment, information or complaint, for a crime of which he has been acquitted, but such acquittal may be pleaded by him in bar of any subsequent prosecution for the same crime, notwithstanding any defect in the form or substance of the indictment, information or complaint. (Ch. 4055, Acts 1891, § 7.)'

The defendant Chance, prior to reversal of the first judgment of conviction, was placed on trial against his consent. At the very beginning of that trial he filed his challenge to the array of jurors on both the regular and special venires. The state resisted the defendant's efforts to have a proper jury impaneled and contended that the irregularities complained of in the challenge to the array were not sufficient to render the jury illegal, and the trial court so held. The error committed by the trial court in thus improperly overruling and disallowing the defendant's challenge to the array of the regular and special venires of trial jurors was of a procedural, not fundamental character. And had not Chance, the convicted defendant, duly insisted upon it as cause for a new trial, or if he had failed to assign it in this court by writ of error as ground for reversal of the judgment against him of second-degree murder, such error would thereby have been waived and thus left the judgment of conviction based on the previous trial a proper and lawful judgment that could in no sense be avoided on collateral attack such as by habeas corpus.

When the proceedings had against a person placed on trial and tried by a jury before a court of competent criminal jurisdiction, upon a valid indictment or information, upon which the defendant has been arraigned and to which he has pleaded or otherwise joined issue under circumstances equivalent to a plea of not guilty, are such that a judgment of conviction rendered pursuant to a verdict of guilty...