16 So. 2d 435 | Fla. | 1944
The appellant, Leo Roberts, was tried and convicted in the Criminal Court of Duval County of the crime of having unlawful carnal intercourse with an unmarried female of previous chaste character under the age of eighteen years. This appeal is from the judgment, two questions being presented for determination.
It is first contended by the appellant that the State has failed to prove that the crime was committed in Duval County and that consequently the motion for a directed verdict of acquittal made at the close of the State's case in chief should have been granted. No direct proof of venue was adduced by the State, the prosecuting witness being unable to testify definitely concerning the exact situs of the crime. Testimony *38
was offered as to the general locality of the offense, however, which the State contends was sufficient to raise a reasonable inference that the offense was committed in Duval County. See Lowman, et al., v. State,
Under these circumstances we are of opinion that if the trial judge committed error in refusing to grant the motion for directed verdict made at the close of the State's case, it was harmless error which did not injuriously affect the substantial rights of the appellant, for from the whole evidence in the case the place of the commission of the offense is not left in doubt. See Sec.
The verdict returned by the jury recited: "We, the Jury, find the defendant Guilty as Charged with recommendation of suspended sentence. So say we all." The appellant asks for a new trial on the ground that at the time the jurors concurred in the verdict of guilty they did so only because of their belief that when a recommendation for suspended sentence was thus incorporated in the verdict the trial judge was mandatorily bound to follow the recommendation of the jury; that otherwise they would not have found the defendant guilty of the offense charged. The appellant seeks to support the contention by an affidavit of one of the jurors filed in the court below to the effect that "after being duly instructed *39 by the Court, said jury retired to the jury room to deliberate and consider its verdict; that after due deliberation, and after mature consideration, it was the unanimous verdict of his jurors that the circumstances and facts involved did not justify an absolute verdict of 'guilty,' but that said jurors felt that said defendant should be and should have been reprimanded in some manner, and that it was the opinion of said jurors that a verdict of 'guilty' with the recommendation attached thereto in words and figures as follows; that 'the defendant be given a suspended sentence' made it mandatory upon the Court to suspend whatever punishment it meted out to the defendant; and that it was not the intention of said jury to convict said defendant with the idea of his being required to serve any time at the State Prison, or otherwise, unless he violate the terms of the Probation contemplated by virtue of the suspension of the sentence pronounced upon him by the said Court; and this affiant further deposes and says that if the said jury and each and every member thereof had known that said recommendation would not have been mandatory upon the Court, that it would not have rendered its verdict of 'guilty'."
We are of opinion that the affidavit shows upon its face an attempt upon the part of a juror to impeach his own verdict. The trial court would have acted without committing error, therefore, had he declined to consider the affidavit. Hamp v. State,
The recommendation made by the jury was a matter addressed merely to the sound judicial discretion of the trial judge; it was not binding upon him. Its inclusion added nothing to the efficacy of the verdict. Sec. 919.23 Florida Statutes, 1941. The trial judge could have followed the recommendation had he seen fit to do so; or he could have ignored or rejected it, as, apparently, he did. In either case the recommendation was surplusage that neither affected the power or duty of the trial court to award the sentence and fix the punishment prescribed by law, nor rendered the verdict, by its inclusion, illegal, indefinite, or void. See Sec. 919.22 Florida Statutes, 1941; Graham v. State,
All grounds of appeal have been duly considered and are found to be without substantial merit. Finding no material error in the record sufficient to justify reversal, the judgment is affirmed.
It is so ordered.
BUFORD, C. J., BROWN and THOMAS, JJ., concur. *41