Overstreet v. Sandler

This case is before us on motion to discharge the rule nisi and dismiss the writ in prohibition proceedings wherein it is alleged: "Your petitioners further suggest that a Grand Jury, duly empaneled and sworn, in the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida in and for the County of Hillsborough, at the Spring Term thereof, A.D. 1936, returned an indictment against them and each of them, charging that they murdered on the 7th day of June, A.D. 1936, one W.G. Chester, alias `Nubby' Chester; said indictment containing two counts, the first count charging the defendants as principals of being guilty of said murder, and the second count charging one with actually committing the crime and the other as principal in the second degree; said indictment was duly filed in the office of the Clerk of the Circuit Court on June 18, 1936, entitled `State of Florida v. Herman Overstreet and Robert Courtney,' and thereafter identified as Case No. 21508-L; that thereafter in said court upon arraignment the defendants and each of them entered a plea of `Not Guilty' and upon said plea the State joined issue; that thereafter on *Page 425 the 28th day of April, A.D. 1937, in said Court a jury was duly organized and sworn to try the issues joined in said case between the State of Florida and the defendants; that thereafter evidence on behalf of the State was introduced and the jury charged to try said issues; that thereafter said evidence being closed, the said jury retired under the charge of that Court to consider their verdict, whereupon the defendants and each of them became and were entitled to a deliverance from and by said jury so selected, upon the issues so joined, and these defendants aver that the said jury was discharged from the consideration and determination of said issues without rendering its verdict thereon, except as hereinafter specified by Exhibit A attached hereto and made a part hereof, and without the consent of these defendants and contrary to their objections and without necessity for such discharge. "That the defendants objected to the acceptance of that portion of the verdict that appeared to find one of the defendants guilty of the charge contained in one count or the other; that thereafter the purported verdict was accepted by the Court not only without the consent of the defendants but over the objections of said defendants and each of them, as will more clearly appear by a true copy of the proceedings which is hereto appended marked Exhibit `C' and requested to be made a part hereof as if set out in haec verba herein, and said jury was discharged without necessity therefor. "Thereafter on the 12th day of May A.D. 1937, the Court of its own motion set aside the verdict in the above styled cause and granted a new trial in said cause and ordered said cause to be set for trial on Monday, May 24th, 1937, at 9:00 o'clock A.M., all of which will be more clearly seen by reference to Page 9 of the transcript of the minutes attached hereto and indicated `Exhibit D.' *Page 426 "You petitioners further suggest that on May 17, 1937, they filed a plea of former jeopardy in said cause as follows;" Then follows, as set forth, the pleas of former jeopardy which are not necessary to be copied here. The record before us shows that after verdict was entered there was a motion made by defendant for a new trial. The record does not show what that motion contained. The record shows that the verdict was "We, the Jury, find the defendants guilty as charged with a recommendation to mercy. So say we all." This was not a proper verdict and should not have been received by the court. If the defendants had been adjudged guilty and sentenced on the verdict and the cause had been brought by writ of error here for review, the judgment would have been reversed because of the insufficiency of the verdict. The Circuit Court had the same right to set aside the verdict and grant a new trial during the same term of court and before writ of error had been sued out, that this Court would have had to reverse the judgment, had it been brought here for review. When the Circuit Court is convinced after the completion of a trial that reversible error had been committed and that a valid judgment cannot be entered against the accused charged with a criminal offense under the verdict rendered, it is the duty of the trial judge to grant a new trial, either of his own volition or on motion timely represented. It, therefore, follows that the rule will be discharged and the cause dismissed. So ordered. WHITFIELD, TERRELL, BROWN and CHAPMAN, J.J., concur.