Lovett v. State (33 Fla. 389, 1894)

Mabry, J..:

This is the third time that this case has been brought' before us on writ of error (Lovett vs. State, 30 Fla., 142, 11 South. Rep., 550, and 31 Fla., 164, 12 South. Rep., 452). The verdict on the second trial (31 Fla., 164, 12 South. Rep., 452), found the defendant guilty as charged in the indictment, with a recommendation of mercy to the court, and the judgment entered thereon was reversed, and the case remanded for a new trial because the verdict failed to ascertain the degree of the crime of which the defendant was convicted. Hall vs. State, 31 Fla., 176, 12 South. Rep., 449. When the case was brought on for another trial the defendant interposed a plea setting up his arraignment and the organization of the jury upon the second trial, and the submission of the issue to the jury, evidence on behalf of both the State and defendant being also submitted and the jury charged to try said issue. The plea further alleges as follows: “And thereupon the said evidence being closed, said jury retired under the charge of this court to consider of their verdict; whereupon this defendant became and was entitled to a deliverance from and by said jury, so selected, upon the issue so joined; and this defendant avers that the said jury was discharged from the consideration and determination of said issue without rendering a verdict thereon, and without the consent of this defendant, and without necessity for such discharge.” The proceedings and minutes of the court of record in the cause were referred to and made a part of the plea. A demurrer to this plea was sustained.

The record shows that the jury found the defendant guilty as charged in the indictment, with a recommendation of mercy to the court. The contention of counsel for plaintiff in error is that the verdict of' guilty as charged in the indictment amounted to no verdict at all, and that the discharge of the jury upon its rendition operated as a liberation of the indictment. This contention is without 'legal support. It is based upon the theory that the defendant was twice put in jeopardy for the same offense. It is said by Dillon, J., in State vs. Redman, 17 Iowa, :329: “In general, it may be said that jeopardy begins when a trial jury, upon a sufficient indictment, in a ■ court of competent jurisdiction, has been empanelled ■ and sworn to try the cause. * * But the jeopardy is not considered as attaching in such cases, although the jury has been sworn, if during the trial the presiding judge becomes so ill as to be unable to proceed; * ■or if a juror’s illness prevents him from sitting farther ■on the trial; * or if the prisoner’s sudden illness incapacitates him from attending or managing his defense; * or if the jury, after full deliberation, are unable to agree; * or if the defendant is erroneously «convicted, and obtains a reversal of the judgment. In ■ all such cases he may be put on his trial again, and • can not claim a discharge or acquittal because a jury has been once before empanelled and sworn to try the •cause. And we understand the settled doctrine to be, that where the verdict is a nullity (or so defective that no judgment can be rendered upon it), the defendant '. may again be put upon his trial, certainly where the •verdict was intended to be one of conviction, for in : such case it is rather a mistrial than a legal putting in .jeopardy.” In the case just quoted from, being for .¡grand larceny, it was necessary under the law of Iowa for the jury to ascertain the value of the property, 'that the court might know with certainty the grade of ■ the offense of which the defendant was convicted. ‘The verdict rendered found the defendant guilty, which was accepted by the court and the jury discharged. On the motion of the state the verdict was ¡.set aside, and the defendant excepted. When the .case