State v. Ramirez

• Decision Date: 08 June 1954
• Citation: 73 So.2d 218
• Parties: STATE v. RAMIREZ.
• Court: Florida Supreme Court

Page 218

73 So.2d 218

STATE v. RAMIREZ.

Supreme Court of Florida, Division A.

June 8, 1954.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellant.

Branch & Goff, Tampa, for appellee.

SEBRING, Justice.

Eloy Ramirez was tried for the crime of rape and the jury returned a verdict of guilty with a recommendation to mercy. Within the time provided by law, the defendant filed a motion for new trial which contained the ground that 'The verdict as announced was not the unanimous verdict of the jury as is evidenced by the affidavit of the juror, William Henry Cowart * * *.' Attached to the motion was an affidavit executed by the said Cowart to the effect that at all times during the course of the jury's deliberations he was convinced of the defendant's innocence but failed to register any objection to the verdict returned by the jury because of his understanding and belief from the charges given by the trial judge that only a majority vote for a conviction by the members of the jury was necessary in order to convict the defendant, and that when a majority so voted he had no right to protest but was bound by such majority vote.

The motion for new trial came on for hearing and at the conclusion of the argument the trial judge entered the following order:

'Eloy Ramirez was tried on a charge of rape * * * the jury sworn to try the case brought in a verdict finding the defendant * * * guilty of rape and recommended him to the mercy of the Court. The jury was not polled. On the next morning * * * William Henry Cowart, one of the jurors who brought in the verdict in the * * * case, voluntarily came to me and told me that he was very disturbed about the verdict * * * that he was firmly convinced that the defendant * * * was innocent and that at no time during the deliberations had he ever been convinced of his guilt and that at the time the verdict was announced, he was still convinced of the innocence of the defendant * * * that he agreed to the verdict and remained silent when it was read in open court by the clerk because of his impression that the verdict of a majority was sufficient to convict, evidently confusing this with the instruction that in the event of a verdict of guilty, the vote of a majority was sufficient for a recommendation of mercy. I questioned Mr. Cowart thoroughly to ascertain if anyone had spoken to him since the verdict was rendered * * * I am convinced that no one had been to see him or discuss the matter with him.

'Although the general rule is that a juror cannot impeach the verdict of the jury, nevertheless, considering the above facts, I am convinced that the ends of justice require granting the defendant * * * a new trial and resubmitting the case to another jury.

'It is therefore adjudged and ordered that the verdict of guilty in this case be, and the same is hereby vacated and set aside, and * * * the Motion of the defendant for a New Trial * * * is hereby granted * * *.'

The State of Florida has appealed from this ruling. Section 924.07, Florida Statutes 1951, F.S.A.

It is apparent from the order appealed from that the trial judge, in granting the motion for new trial, considered only the ground which we have noted above, although there were other grounds contained in the motion.

As to the ground upon which the new trial was ordered, it is settled that a juror, after solemnly entering his verdict in court, is not to be believed or heard when, after the discharge of the jury of which he was a member, he swears that he never approved or consented to the verdict; and that after the return of a verdict in open court the testimony of jurors as to motives and influences by which their deliberations were governed should not be received.

As the matter is stated in Turner v. State, 99 Fla. 246, 126 So. 158, 159:

"The general rule is that affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. But this general rule is subject to this qualification, that affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room which does not essentially inhere in the verdict itself.' In fact 'the rule is general, with but few exceptions, if any, that the testimony of jurors will not be received to impeach their verdict.' Linsley v. State, 88 Fla. 135, 101 So. 273, 275; 27 R.C.L. 896; Bartlett v. Patton, 33 W.Va. 71, 10 S.E. 21, 5 L.R.A. 523.

'The matters stated in the affidavit show that it inheres essentially in the verdict itself.

'The general rule appears to have always been that affidavits of jurors would not be received to show that a juror or jurors misunderstood the court's charge. If they differ about the instructions of the court, they should come into court and have them repeated; and if they fail to do this, they ought...