Ex Parte: Harvey Wilson

THOMAS, J.: Habeas corpus was employed to present a challenge to the validity of the verdict, and the judgment upon which the petitioner was imprisoned. The information charged him with the commission of robbery by a person armed, defined in Sec. 7157 C.G.L. 1927 (now Sec. 13.01, Florida Statute, 1941). An element of the offense necessary to be proven to justify conviction is the intent of the perpetrator, at the time of the assault, to kill or maim his victim “if resisted.” The jury found the defendant “guilty of armed robbery as charged. But with no intention to Mil or maim.” (Italics furnished by us). Obviously this verdict was defective and it probably would have been better practice to have directed further consideration to the end that the ambiguity might have been eliminated, a course authorized under Section 233 of the Criminal Procedure Act. It was the court’s office, however, by the same authority to determine “whether the jurors intended to acquit ... to convict ... of [an] offense for which judgment could be entered under the . . . information ...” In view of the judment subsequently entered we may assume the trial judge decided that there was no purpose to acquit, but to find the defendant guilty of a crime of lower degree, that is, robbery by a person unarmed, denounced in Sec. 7158 C.G.L. 1927, Sec. 813.02 Florida Statutes, 1941 although the sentence of three years in the state prison eventually imposed was appropriate punishment under either law. *461 When sentence was passed, however, the court adjudged the defendant “guilty of the offense of armed robbery without intent to kill,” a crime not described in the statutes we have quoted. To convict of the graver offense there must be proven not only the specific intent to which we have referred but also that the defendant was armed with a dangerous weapon, while in the other such intent need not be established nor must the defendant be shown to have been armed. We think, technical as the point may be, that the judgment is imperfect because it does not contain a proper adjudication of the crime which the court construed the verdict to fix and that the petitioner should be remanded with instructions that the court correctly adjudge his guilt and pronounce his sentence. It is so ordered. BUFORD, C. J., TERRELL and SEBRING, JJ., concur. BROWN, CHAPMAN and ADAMS, JJ., dissent.