Perry v. State

160 So. 664, 119 Fla. 674, 1935 Fla. LEXIS 1035

• Court: Supreme Court of Florida
• Decided: April 8, 1935
• Status: Published

Opinions

Per Curiam.

Writ of error brings' for review judgment of conviction of plaintiff in error in the Circuit Court of Leon County of the offense of unarmed robbery from the person.

It is contended that the case should be reversed, first, because the evidence is insufficient to sustain the judgment; and second, because the verdict reading: “We, the jury, find the defendant guilty. So say we all” is indefinite and uncertain in a case where two or more defendants are tried together under one charge.

The record shows that the plaintiff and another were tried jointly.

There is sufficient evidence in the record to sustain the verdict if the same was believed by the jury and the verdict indicates that the jury did believe that evidence which, if believed, was sufficient to constitute a basis for the verdict against the defendants.

The record further shows that new trial was granted to the co-defendant, one Hall, and thereupon the case against Hall was nol-prossed at the request of the States Attorney.

The record does not show that the defect in the verdict was called to the attention of the court prior to judgment and sentence. Neither was it brought to the attention of the court by motion in arrest of judgment.

In Taylor v. State, 88 Fla. 555, 102 Sou. 884, we said:

“The true rule is that when a verdict is upon its face so defective as a matter of record that judgment can not legally be entered thereon, then a motion in arrest of judgment is the proper way to assail it.”

In Edwards v. State, 54 Fla. 40, 45 Sou. 21, we held:

“The verdict is a part of the record proper and any defect appearing on the face of it should be determined upon motion in arrest of judgment.”

Aside from this, however, it appears that upon motion of the Attorney General the record in this case was remanded ' to the court below and the verdict as shown by the record was corrected to conform with the true verdict as the same appeared on file in the clerk’s office and by that correction, which is certified to by the Clerk of the Circuit Court of Leon County, the verdict is shown to have read: “We, the jury, find the defendants' guilty. So say we all.”

Therefore, the record, as' corrected, shows no uncertainty in the verdict.

The judgment should be affirmed.

It is so ordered.

Affirmed.

Ellis, P. J., and Terrell and Buford, J. J., concur. Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.