Tervin v. State

• Decision Date: 26 May 1896
• Parties: TERVIN v. STATE.
• Court: Florida Supreme Court

20 So. 551

37 Fla. 396

TERVIN v. STATE.

Florida Supreme Court

May 26, 1896

Error to circuit court, Walton county; John W. Malone, Judge.

George McK. Tervin was convicted of larceny, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Whenever, either in felony or misdemeanor, the judge discovers anything that will render a verdict against the prisoner void, or subject to be avcided by him, or will render it impossible that a verdict should be reached,--anything, in other words, establishing that no jeopardy has really attached to the prisoner, and that any further progressing in the trial will be fruitless,--he may adjudge the fact, put the adjudication on record, and discharge the jury. Then, the prima facie jeopardy appearing of record, matter nullifying it will appear also, and the defendant will be properly held for further proceedings.

2. Where the judge, in a felony trial, with the consent of the accused, gives the jury permission to return a sealed verdict, and to separate for the night after agreeing upon such verdict, and the jury, during the night, inform the officer having them in charge that they have agreed upon a verdict that they would seal up, and deliver on the convening of court next morning, and thereby procure from such bailiff permission to separate and disperse, and do separate and disperse for the rest of the night, and on the assembling of court next morning they reassemble and return the following as their verdict: 'We the jury, agree to disagree. So say we all,'--signed by their foreman, held, that under these circumstances the judge, in the exercise of a sound discretion, has the power to declare a mistrial, and to discharge the jury without the defendant's consent, and that, if the facts and the adjudication thereon are placed upon record, it is not such a former jeopardy as will preclude another trial.

3. While section 1093 of the Revised Statutes confers upon juries the legal right to a discharge when the circumstances exist that are therein mentioned, yet it was not designed to abridge in any way the judicial discretion vested in the judge to order such discharge whenever a proper case is presented for the exercise of such discretion, even though the circumstances warranting such discharge were not such as would have clothed the jury itself, under this statute, with the right to demand it.

4. When there is any such irregularity in the drawing or impaneling of a grand jury that returns an indictment as would render it illegal or void, the proper way to make it appear is by plea in abatement, instead of by a motion to quash.

5. Pleas in abatement setting up defects in the drawing or impaneling of grand juries must be drawn with rigid strictness and certainty to every intent.

6. In trials for felonies, other than capital cases, if a separation of the trial jury before verdict is complained of the burden is upon the defendant to show that he was injured by such separation. If he fails to show such injury, it is not ground for new trial, or for reversal on writ of error.

7. The ignorance of a thief as to the ownership of the property he steals does not excuse the larceny of it, if he knew at the time that the property did not belong to him.

COUNSEL

Daniel Campbell, D. L. McKinnon and D. C. Campbell for plaintiff in error.

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

OPINION

TAYLOR, J.

At the spring term, 1893, of the circuit court for Walton county the plaintiff in error was indicted for the crime of larceny of a cow. At the fall term, 1895, of said court, he was tried and convicted, and sentenced to imprisonment in the penitentiary for one year, and he brings this judgment here for reviewal by writ of error.

On the 27th day of October, 1893, the said defendant below filed the following plea in abatement: 'Now, on this day, comes the defendant, and for plea says: That on the 19th day of October A. D. 1893, he was duly arraigned upon the indictment herein pleaded not guilty; a jury of six lawful jurors were tried, impaneled, and sworn to try the issue between him and the state. That the indictment was read to the jury. That the evidence for the state and himself was introduced. The counsel for the state and himself were heard by the jury, and the court delivered his charge to the jury. It then being a late hour in the evening, the jury were instructed that they might find a sealed verdict, should they agree upon a verdict before the opening of the court on the following day, and be present at the opening of the court the next morning, to have their verdict opened in their presence. That during said night they informed the sheriff that they had agreed upon a verdict, whereupon he furnished them with an envelope to seal their verdict, and they then and there dispersed until the opening of the court next morning, the 20th of October, A. D. 1893, when in their presence the court opened the sealed envelope, and found a slip of paper on which was written the following, to wit: 'We, the jury, agree to disagree. So say we all. Henry Farmer, Foreman,'--whereupon the said court did then and there discharge the said jury from the further consideration of said cause, without his consent. Therefore defendant prays judgment of the court whether he shall be further held to answer said indictment, and to be discharged.'

The state attorney moved to quash this plea upon the grounds that it did not set up any matter of defense, and because it is at variance with the record of the case in said court. No ruling appears from the record to have been made upon this motion, but, so far as the record shows, it seems to have been abandoned by the state attorney, who on the 2d day of May, 1894, filed a replication to the defendant's said plea in abatement, alleging that the proposition for the jury to find and return a sealed verdict, and to disperse, after so doing, until next day's sitting of the court, and the discharge of the jury by the court after their alleged disagreement, were all done by and with the consent of the defendant. The defendant demurred to this replication, which demurrer the court overruled. On the 21st of October, 1895, the state attorney demurred to the defendant's said plea in abatement, and on the same day the defendant moved to strike said demurrer, upon various grounds, not necessary to mention. This motion the court overruled, whereupon the state's demurrer to the defendant's plea in abatement was heard and sustained by the court. All of these rulings are questioned, and constitute the first, second, and third assignments of error. They present but one question; that is, whether the discharge of the jury by the judge at the first trial, under the allegations contained in the defendant's plea in abatement, was so unauthorized and devoid of necessity as would forbid any other or further trial of the defendant for the offense charged.

According to the allegations of the defendant's plea in abatement and from the minute entries, it appears that at the former term of the court the defendant was put upon trial before a jury, who, upon retiring to consider of their verdict, at a late hour in the evening, were instructed by the court that if they agreed upon a verdict they could seal it up, and present it next morning, on the opening of the court; that during the night they informed the sheriff that they had agreed upon a verdict, whereupon the sheriff furnished them with an envelope, in which they sealed up what purported to be a verdict, and then dispersed and separated. Next morning, on the opening of the court, they reassembled; and the court, on opening the sealed finding, in their presence, found it to be simply an announcement of an agreement upon their part to disagree, whereupon the court discharged them from further consideration of the case, and imposed a fine upon each of them. In 1 Bish. New Cr. Law, § 1036, the adjudged principles applicable to the authority of the court to discharge juries in criminal cases before verdict found, and the propriety of another trial thereafter, is tersely and accurately summarized as follows: 'Whenever, either in felony or misdemeanor, the judge discovers anything which will render a verdict against the prisoner void, or subject to be avoided by him, or will render it impossible that a verdict should be reached,--anything, in other words, establishing that no jeopardy has really attached to the prisoner, and that any further progressing in the trial will be fruitless,--he may adjudge the fact, put the adjudication on record, and discharge the jury. Then, the prima facie jeopardy appearing of record, matter nullifying it will also appear, and the defendant...