Washington v. State

• Decision Date: 18 March 1908
• Citation: 46 So. 417,55 Fla. 194
• Parties: WASHINGTON v. STATE.
• Court: Florida Supreme Court

46 So. 417

55 Fla. 194

WASHINGTON v. STATE.

Florida Supreme Court, Division B.

March 18, 1908

Error to Circuit Court, Leon County; John W. Malone, Judge.

John Washington was convicted of assault with intent to kill, and he brings error. Reversed.

Whitfield J., dissenting.

Syllabus by the Court

SYLLABUS

A verdict should be certain, positive, and free from all ambiguity. It must be so certain that the court can give judgment upon it.

The verdict should be regarded from the standpoint of the jury's intention, and when this can be ascertained, if consistent with legal principles, such effect should be allowed to their findings as will most nearly conform to their verdict. If the verdict is not sufficiently certain to clearly show what the jury intended, it will be fatally defective.

A verdict: 'We, the jury, find the defendant guilty of aggavated assault with intent to murder. So say we all'--is uncertain, ambiguous, and fatally defective.

There is no necessity for a defective verdict to be received or recorded. If the jury bring in a defective verdict, it is in the power equally of the court, the prisoner, and the prosecuting attorney to have it set right before the discharge of the jury. If the verdict is ambiguous or uncertain, the judge should cause the jury to correct it before discharging them.

COUNSEL

W. C. Hodges, for plaintiff in error.

OPINION

PARKHILL J.

The plaintiff in error, John Washington, who will be called the defendant, was indicted for an assault upon one Mathew Williams with a deadly weapon, a pistol, from a premeditated design to effect the death of the said Williams. The verdict of the jury was as follows: 'We, the jury, find the defendant guilty of aggravated assault with intent to murder. So say we all.' The defendant was sentenced to the state prison for two years.

Under the errors assigned it is contended that the verdict found the defendant guilty of no offense known to the laws of Florida, but it found the defendant guilty of two substantive offenses, 'aggravated assault' and 'assault to murder,' and no sentence could properly be passed upon such verdict.

A verdict should be certain, positive, and free from all ambiguity and obscurity. Bryant v. State, 34 Fla 291, 16 So. 177; Higginbotham v. State, 42 Fla. 573, 29 So. 410, 89 Am. St. Rep. 237; Long v. State, 42 Fla. 612, 28 So. 855; Grant v. State, 33 Fla. 291, 14 So. 757, 23 L. R. A. 723.

The verdict should be regarded from the standpoint of the jury's intention, and when this can be ascertained, if consistent with legal principles, such effect should be allowed to their findings as will most nearly conform to their intent. If the verdict is not sufficiently certain to clearly show what the jury intended, it will be fatally defective. Clark's Crim. Proc. 485; 29 Am. & Eng. Ency. Law (2d Ed.) 1023.

The test of the sufficiency of a verdict is stated to be this: Is it so certain that the court can give judgment upon it? See 29 Am. & Eng. Ency. Law (2d Ed.) 1025.

The verdict before us finds the defendant guilty of aggravated assault with intent to murder. Under our statute the term 'aggravated assault' is given a definite and peculiar meaning of its own. Aggravated assault is a well-known criminal offense under our statute. 'Whoever assaults another with a deadly weapon, not having a premeditated design to effect the death of the person assaulted, shall be deemed guilty of an aggravated assault.' Section 3228, Gen. St. 1906.

In Lindsey v. State, 53 Fla. 56, 43 So. 87, We said: 'In a prosecution for aggravated assault, an assault with a deadly weapon must be alleged and proven; but the intent with which the assault was made, whether to wound or injure, or whether the assault was made with any particular intent, is immaterial, unless the intent should amount to an intent to kill or a premeditated design to effect death, in which case the assaulting party would be guilty of an assault with intent to commit manslaughter or murder.'

It will be noted that the jury, by this verdict, found the defendant guilty of an aggravated assault (that is, an assault with a dangerous weapon without an intent to murder) with an intent to murder. A verdict that finds the assault to have been committed with and without an intent to murder is contradictory, uncertain, and ambiguous.

This verdict, taken in its technical, literal sense, convicts the defendant of no offense known to the law or charged in the indictment. From it we cannot ascertain the intention of the jury. How the jury arrived at this verdict it is difficult to say. It is likely that the jury misunderstood the instructions of the court, and became confused as to the different grades of assaults included in the offense charged in the indictment. The charge being one of assault with intent to murder, the jury were authorized, under the allegations of the indictment and in view of the evidence, to find the defendant guilty of aggravated assault. Perhaps the jury were trying to make this finding by the use of the peculiar language employed.

The offense of aggravated assault is made a misdemeanor by our statute, and is punishable by by fine and imprisonment in the county jail. The offense of assault with intent to murder is a felony under our statute, and punishable by...