Urga v. State

• Decision Date: 30 July 1948
• Citation: 160 Fla. 740,36 So.2d 421
• Parties: URGA v. STATE.
• Court: Florida Supreme Court

36 So.2d 421

160 Fla. 740

URGA v. STATE.

Florida Supreme Court

July 30, 1948

Appeal from Criminal Court of Record, Hillsborough County; John R Himes, Judge.

Whitaker Brothers, of Tampa, and J. Lewis Hall, of Tallahassee, for appellant.

J. Tom Watson, Atty. Gen., Ernest W. Welch, Asst. Atty. Gen., and Lucille Snowden, Sp. Asst. Atty. Gen., for appellee.

THOMAS, Chief Justice.

The appellant was tried in the Criminal Court of Record of Hillsborough County and convicted and wilfully, unlawfully, and feloniously using certain instruments on a female with intent to procure a miscarriage. Upon appeal, the matter was reviewed here and the judgment was affirmed. Urga v. State, 155 Fla 86, 20 So.2d 685.

Later the appellant filed a motion in this court seeking an order authorizing the trial court to entertain and decide her application for a writ of error coram nobis. The motion was granted; whereupon the petition was presented to the Criminal Court of Record of Hillsborough County. Eventually a jury was impaneled to try the issues formed by the allegations in the petition and the pleas filed by the county solicitor on behalf of the state. The trial culminated in a verdict 'for the Petitioner Diamante Urga, and against the State of Florida.'

Subsequently the county solicitor filed a motion for new trial on the three grounds that the verdict was contrary to the law, the evidence, and the weight of the evidence, which, after argument of counsel for the appellant and the county solicitor, was decided, to quote the order, 'in words and figures following: Motion heard, considered and granted.'

We are presently considering an appeal from that motion, which we have held, by denying a motion to dismiss in this court, was an appealable order.

A careful examination of the record in this case has satisfied us that there was abundant testimony, if believed by the jury, to substantiate the position taken by the appellant. It is true that this court is always reluctant to disturb an order of a trial court granting a new trial, inasmuch as such a motion is 'addressed to the sound judicial discretion of the trial court, and the presumption is that he exercised that discretion properly.' Henderson v. State, 135 Fla. 548, 185 So. 625, 630, 120 A.L.R. 742. However, if substantial evidence appears to support the verdict, it should stand, as 'the trial court is without authority at law to substitute his conclusions based on the evidence for the views and conclusions of the jury impanelled and sworn to try the controverted issues of fact.' Hart v. Held, 149 Fla. 33, 5 So.2d 878, 882. The author of the opinion in that case further observed that a trial court might set aside the verdict and grant a new trial if the jury had been deceived 'as to the force and credibility of the evidence, or * * * influenced by considerations outside the record, but when no issue is involved but the sufficiency and the probative force of the evidence, the verdict should not be interfered with. It is error to grant a new trial when the verdict set aside is supported by the testimony appearing in the record and nothing can be accomplished except to have another jury review the cause.' (Emphasis supplied.)

Adverting to the motion of the state and the order of the judge, which we have quoted, we find nothing to apprise us of the errors which were urged or the reasons that prompted the court in ruling as he did. From the examination of the record we have not discovered any question save what might have been arisen from conflicts in the testimony of the witnesses who testified in the case, and we have reached the conclusion that the only purpose that could be served by a retrial would be a review of the facts by a different jury.

So we decide that the order should be reversed, with directions to enter judgment in favor of the appellant and to proceed accordingly.

Reversed.

TERRELL, CHAPMAN, ADAMS BARNS and HOBSON, JJ., concur.

SEBRING, J dissents.

SEBRING, Justices (dissenting).

This is an appeal from an order granting the State of Florida a new trial in a coram nobis proceeding.

The appellant Urga was tried and convicted in the Criminal Court of Record of Hillsborough County of unlawfully using certain instruments and other means in and upon one Clara Belle Shaw, with the intent to procure the miscarriage of the said Clara Belle Shaw, contrary to section 797.01, Florida Statutes 1941 F.S.A. The judgment was affirmed on appeal. Urga v. State, 155 Fla. 86, 20 So.2d 685. Thereafter the appellant filed her application in this court for permission to present a petition for a writ of coram nobis to the court below, on the ground of newly discovered evidence which it is alleged was not known and could not have been known to her or her counsel at or before trial, and permission to apply for the writ was granted by this...