Vogel v. State

• Decision Date: 28 May 1936
• Citation: 124 Fla. 409,168 So. 539
• Parties: VOGEL v. STATE.
• Court: Florida Supreme Court

168 So. 539

124 Fla. 409

VOGEL v. STATE.

Florida Supreme Court

May 28, 1936

Error to Criminal Court of Record, Dade County; Ben C. Willard Judge.

Bonnie Vogel was convicted of attempt to commit manslaughter, and she brings error.

Reversed.

ELLIS P.J., and TERRELL, J., dissenting

COUNSEL Van C. Swearingen and I. J. A. Renno, both of Miami, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD Justice.

The writ of error brings for review a judgment entered in the criminal court of record of Dade county, Fla.

The question which must be determined here is whether or not the verdict returned by the jury was sufficient to sustain the judgment.

It is contended that as no advantage was sought to be taken of the verdict when it was returned and no exception noted, the plaintiff in error cannot take advantage of the verdict now. This contention is not tenable because there was no reason for the defendant to object to the verdict. The verdict on its face was not such as would sustain judgment of conviction of the offense charged.

The defendant should have been entirely satisfied with the verdict though objecting to the validity of any judgment adverse to her entered upon it.

It is well settled in this jurisdiction that:

'While, generally speaking, the consideration of the appellate court will be confined to the errors assigned and argued by the plaintiff in error; yet, to this rule there are certain exceptions. Where a jurisdiction or other fundamental error of law is apparent on the face of the record itself, such error may be considered by the appellate court, though it is not assigned. Demeter Land Co. v. Florida Public Service Corp., 99 Fla. 954, 128 So. 402; Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656; Parker v. Dekle, 46 Fla. 452, 35 So. 4; East Coast Stores v. Cuthbert, 101 Fla. 25, 133 So. 863; Bynum v. State, 76 Fla. 618, 80 So. 572; White v. Crandall, 105 Fla. 70, 137 So. 272; Gunn v. State, 78 Fla. 599, 83 So. 511; O'Steen v. State, 92 Fla. 1062, 1066, 1075, 111 So. 725; Gober v. Braddock, 100 Fla. 1406, 131 So. 407.'

It is contended here that:

'There language of the verdict means that the accused was guilty of endeavoring to do manslaughter; that is, she attempted, or as was said in Bunch State, supra [58 Fla. 9, 50 So. 534, 138 Am.St.Rep. 91], 'intended' to do manslaughter. That is to say she was guilty of an effort or assault having an intent to do or commit manslaughter.'

The first sentence is clearly a correct statement, that this statement brings the verdict clearly within the purview of and shows it was a finding of guilty only of the offense denounced by section 5403, R.G.S., section 7544, C.G.L. But the reasoning reflected by the last sentence is not justified by the language of the verdict.

In the case of Bunch v. State, 5, Fla. 9, 50 So. 534, 138 Am.St.Rep. 91, the verdict was: 'We, the jury, find the defendant, Mamie, Bunch, guilty of assault with attempt to murder in the second degree; so say we all.' And it was held that the word 'attempt' carries with it the idea of intent in that verdict. But there the jury found the defendant guilty of the assault, which is a finding material to the offense of assault with intent to commit unlawful homicide.

Section 5403, R.G.S., section 7544, C.G.L., provides, amongst other things:

'Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration, or is intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:

'1. If the offense attempted to be committed is punishable with death, the person convicted to such attempt shall be punished by imprisonment in the State prison not exceeding ten years.

'2. If the offense attempted to be committed is punishable by imprisonment in the State prison for life, or for five years or more, the person convicted of such attempt shall be punished by imprisonment in the State prison not exceeding five years, or in the county jail not exceeding one year.'

So it is that one who is convicted of an attempt to commit manslaughter which comes within the purview of this section may be punished imprisonment in the state prison not exceeding five years. The judgment in this case imposed upon the defendant a sentence of ten years. The judgment in this case did not follow the verdict. The verdict was:

'We, the jury, find the defendant Bonnie Vogel guilty of attempted manslaughter, with the recommendation of mercy. So say we all.'

While the judgment was:

'It appearing unto this Court that you, Bonnie Vogel, have been regularly tried and convicted of Assault with Intent to Commit Manslaughter,

'It is therefore the judgment of the Law and it is hereby adjudged that you are and stand guilty of said offense.

'It is further considered, ordered and adjudged that you be imprisoned by confinement at hard labor in the State Penitentiary for a term of ten (10) years.

'Done and ordered in open Court at Miami, Dade County, Florida, this 5th day of June, A. D. 1935.'

As there was no conviction by plea of guilty, or by verdict of jury, of the offense of assault with intent to commit manslaughter, but merely a conviction which, at most, could be considered as of simple attempt to commit manslaughter, the record on its face shows that there has been no conviction which will sustain the judgment. To make our meaning clear, let us suppose a case like this:

A is about to perpetrate an assault upon B which, if perpetrated, would constitute an assault with intent to commit manslaughter. But, before A can actually make the assault which he is then ready, willing, able, and intends to make, he is stopped by C, who overcomes A and prevents any assault being made. A is guilty of the attempted assault, but not guilty of assault at all. Yet, he has committed the substantive offense denounced by section 5403, R.G.S., section 7544, C.G.L. See Devoe v. Tucker, 113 Fla. 805, 152 So. 624. The defective verdict should not have been accepted from the jury.

The judgment should be reversed.

So ordered.

Reversed.

WHITFIELD, C.J., and BROWN and DAVIS, JJ., concur.

ELLIS P.J., and TERRELL, J., dissent.

DISSENTING

ELLIS, Presiding Justice (dissenting).

The principal question presented in this case is whether the verdict is sufficiently certain to sustain the judgment.

The plaintiff in error, Bonnie Vogel, was informed against in the criminal court of record for Dade county upon the charge of feloniously assaulting Clayton Vogel from a premediated design to effect his death. The offense was alleged to have been committed in April, 1935, in Dade county.

The accused was tried in June, 1935, and the jury returned a verdict in the following words: 'We, the jury, find the Defendant Bonnie Vogel Guilty of attempted Manslaughter, with the recommendation of mercy. So say we all.' It was signed by the foreman. Judgment of conviction was entered, and sentence of imprisonment by confinement at hard labor in the State Penitentiary for a term of ten years was imposed.

The brief for plaintiff in error undertakes to present the point, but the record does not disclose that any question was raised as to the form or substance of the verdict before the trial court.

An attempt in a motion for a new trial was made to attack the verdict. The grounds alleged were that the verdict stated no offense under the law; that it was unintelligible so that one 'could not determine the extent or effect of said verdict against the Defendant.'

An oral motion in arrest of judgment was made according to a recitation of the fact contained in the record proper. The bill of exceptions states that counsel for the accused moved in arrest of judgment 'on the ground that the information was not read to the jury, and that evidence was submitted that the jury sould not consider in this case.' It appears that both motions were overruled.

If there is any defect in the verdict, it is a matter which appears on the face of the record and should have been attacked by a motion in arrest of judgment. See Ball Bros. v. Holland, 76 Fla. 268, 79 So. 635; Lewis v. State, 87 Fla. 37, 98 So. 917; Henderson v. State, 55 Fla. 36, 46 So. 151; Caldwell v. People's Bank of Sanford, 73 Fla. 1165, 75 So. 848; Golding v. State, 31 Fla. 262, 12 So. 525; Lake v. State, 100 Fla. 373, 129 So. 827, 131 So. 147; Ephriam v. State, 82 Fla. 93, 89 So. 344; Taylor v. State, 88 Fla. 555, 102 So. 884; Sawyer v. State, 94 Fla. 60, 113 So. 736.

Such motions are made after verdict and before judgment, but they are not favored. When a verdict is defective on its face a motion in arrest of judgment is the proper method of attack. See Harris v. State, 53 Fla. 37, 43 So. 311.

The verdict, however, must be so defective as a matter of record that judgment cannot be legally entered thereon. Harris v. State, supra.

If the verdict finds an accused person guilty of an offense not charged, or included in the charge made in the information or indictment, the motion in arrest of judgment should be granted. Hogan v. State, 42 Fla. 562, 28 So. 763.

No attack having been made upon the verdict by a motion in arrest of judgment but only through the medium of a motion for a new trial, which is the means by which some matter is pais is relied upon to show the error and which must be exhibited by a bill of exceptions, the point must be considered waived unless indeed the verdict is a brutum fulmen, an empty sound, a senseless, meaningless thing which signifies nothing.

In the case of Hogan v. State, supra, the court held that...