The writ of error brings for review a judgment entered in the Criminal Court of Record of Dade County, Florida.
The question which must be determined here is whether or not the verdict returned by the jury was sufficient to sustain the judgment.
It is contended that as no advantage was sought to be taken of the verdict when it was returned and no exception noted, the plaintiff in error cannot take advantage of the verdict now. This contention is not tenable because there was no reason for the defendant to object to the verdict. The verdict on its face was not such as would sustain judgment of conviction of the offense charged.
The defendant should have been entirely satisfied with the verdict though objecting to the validity of any judgment adverse to her entered upon it.
It is well settled in this jurisdiction that:
"While, generally speaking, the consideration of the appellate court will be confined to the errors assigned and argued by the plaintiff in error; yet, to this rule there are certain exceptions. Where a jurisdiction or other fundamental error of law is apparent on the face of the record itself, such error may be considered by the appellate court, though it is not assigned. Demeter Land Co. v. Florida Public Service Corp., 99 Fla. 954,128 So. 402; Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656; Parker v. Dekle, 46 Fla. 452, 35 So. 4; East Coast Stores v. Cuthbert, 101 Fla. 25, 133 So. 863; Bynum v. State, 76 Fla. 618, 80 So. 572; White v. Crandall (Fla.) 137 So. 272; Gunn v. State, *Page 411 78 Fla. 599, 83 So. 511; O'Steen v. State, 92 Fla. 1066, 1075,111 So. 725; Gober v. Braddock, 100 Fla. 1406, 131 So. 407."
It is contended here that:
"The language of the verdict means that the accused was guilty of endeavoring to do manslaughter; that is, she attempted, or as was said in Bunch v. State, supra, `intended' to do manslaughter. That is to say she was guilty of an effort to do or commit manslaughter."
The first sentence is clearly a correct statement and this statement brings the verdict clearly within the purview of, and shows it was a finding of guilty only of the offense denounced by Sec. 5403 R.G.S., 7544 C.G.L. But the reasoning reflected by the last sentence is not justified by the language of the verdict.
In the case of Bunch v. State, 58 Fla. 9, 50 So. 534, the verdict was:
"We, the jury, find the defendant, Mamie Bunch, guilty of assault with attempt to murder in the second degree. So say we all."
And it was held that the word "attempt" carries with it the idea of intent in that verdict. But there the jury found the defendant guilty of the assault which is a finding material to the offense of assault with intent to commit unlawful homicide.
Sec. 5403 R.G.S., 7544 C.G.L., provides, amongst other things:
"Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration, or is intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows: *Page 412
"1. If the offense attempted to be committed is punishable with death, the person convicted to such attempt shall be punished by imprisonment in the state prison not exceeding ten years.
"2. If the offense attempted to be committed is punishable by imprisonment in the State prison for life, or for five years or more, the person convicted of such attempt shall be punished by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding one year."
So it is that one who is convicted of an attempt to commit manslaughter which comes within the purview of this section may be punished by imprisonment in the state prison not exceeding five years. The judgment in this case imposed upon the defendant a sentence of ten years. The judgment in this case did not follow the verdict. The verdict was:
"We, the jury, find the defendant, Bonnie Vogel, guilty of attempted manslaughter, with the recommendation of mercy. So say we all."
While the judgment was: "It appearing unto this Court that you, Bonnie Vogel, have been regularly tried and convicted of Assault with Intent to Commit Manslaughter,
"IT IS THEREFORE THE JUDGMENT of the Law and it is hereby adjudged that you are and stand guilty of said offense.
"IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that you be imprisoned by confinement at hard labor in the State PENITENTIARY for a term of ten (10) years.
"DONE AND ORDERED in open Court at Miami, Dade County, Florida, this 5th day of June, A.D. 1935."
As there was no conviction by plea of guilty, or by verdict of jury, of the offense of assault with intent to commit *Page 413 manslaughter, but merely a conviction which, at most, could be considered as of simple attempt to commit manslaughter, the record on its face shows that there has been no conviction which will sustain the judgment. To make our meaning clear, let us suppose a case like this:
"A" is about to perpetrate an assault upon "B" which, if perpetrated, would constitute an assault with intent to commit manslaughter, but, before "A" can actually make the assault which he is then ready, willing, able and intends to make, he is stopped by "C" who overcomes "A" and prevents any assault being made. "A" is guilty of attempted assault, but not guilty of assault at all. Yet, he has committed the substantive offense denounced by Section 5403 R.G.S., 7544 C.G.L. See DeVoe v. Tucker, 113 Fla. 805, 152 So. 624. The defective verdict should not have been accepted from the jury.
The judgment should be reversed.
So ordered.
Reversed.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur.
ELLIS, P.J., and TERRELL, J., dissent.