This case is again before us after rehearing *Page 427 granted and after reargument before the entire Court. In our opinion filed herein on June 16, 1938, we said:
"If the defendants had been adjudged guilty and sentenced on that 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 has 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 presented."
In petition for rehearing it was contended: "The jury returned a verdict as follows: `We, the jury, find the defendant (s?) guilty as charged and recommend mercy.' Your petitioners, thedefendants, objected to the acceptance of this verdict before itwas accepted, specifying as grounds, therefore, its failure to comply with the requirements of the Statute. This objection was overruled and the purported verdict was ordered to be filed, whereupon your petitioners objected and protested to thedischarge of the jury without their having arrived at a verdictbased upon the issues submitted. This later objection was overruled, thereafter, some few days later the court of its own accord ordered a new trial. These facts are set up in the petition to which the respondent filed a motion to quash, which for this purpose admit of the truth of these facts alleged. It will be noted that the purported verdict may be in the singular or the plural. The curlicue on the `t,' the *Page 428 last letter of the word defendant may have been intended as a cross of the `t' or as a `s.' Thus there arises as a result of these facts the two following questions:"
We have again inspected photostatic copy of the verdict and must hold that the verdict reads "defendants."
The record shows that the only objection to receiving and recording the verdict was as follows; the jury reported its verdict to the court in open court and it was read in open court by order of the trial judge. The following proceedings occurred:
"By Mr. McArthur: I wish to advise the Court at this time, before the jury is dismissed, we except to the acceptance of this verdict on the ground that it came to the attention of the defendants in this case that Pasco Alonzo is not the name of Pasco Alonzo and he is not the party indicated by the County Commissioners, certified to Your Honor and certified to the Clerk of this Court as a prospective juror. I ask that the verdict of this jury be not accepted, because it was not returned by twelve men in accordance with the requirements of the law.
"By the Court: Motion denied. * * *
"By Mr. McArthur: I want to call attention to the same case of Valenti. I move under the circumstances that this verdict is highly improper and I ask that the Court not accept the same.
"By the Court: Motion denied.
"By Mr. McArthur: I file a motion for a new trial and I ask that the verdict be not accepted."
It will be observed that neither of the defendants objected to the form of the verdict but the sole objection presented was that two men had served on the jury who were not the men summoned to serve. It is too well settled to require any citation of authorities that such objections must be raised before trial. *Page 429
In Lovett v. State, 33 Fla. 389, 14 So. 837, we said: "The record shows that the jury found the defendant guilty as charged in the indictment, with a recommendation of mercy to the court. The contention of counsel for plaintiff in error is that the verdict of guilty as charged in the indictment amounted to no verdict at all, and that the discharge of the jury upon its rendition operated as a liberation of the indictment. This contention is without legal support. It is based upon the theory that the defendant was twice put in jeopardy for the same offense. It is said by Dillion, J., in State v. Redman, 17 Iowa 329 : `In general, it may be said that jeopardy begins when a trial jury, upon a sufficient indictment, in a court of competent jurisdiction, has been empaneled and sworn to try the cause. * * * But the jeopardy is not considered as attaching in such cases, although the jury has been sworn, if during the trial the presiding judge becomes so ill as to be unable to proceed; * * * or if a juror's illness prevents him from sitting farther on the trial; * * * or if the prisoner's sudden illness incapacitates him from attending or managing his defense; * * * or if the jury, after full deliberation, are unable to agree; * * * or if the defendant is erroneously convicted and obtains a reversal of the judgment. In all such cases he may be put on his trial again and cannot claim a discharge or acquittal because a jury has been once before empanelled and sworn to try the cause. And we understand the settled doctrine to be that where the verdict is a nullity (or so defective that no judgment can be rendered upon it), the defendant may again be put upon his trial, certainly where the verdict was intended to be one of conviction, for in such case it is rather a mistrial than a legal putting in jeopardy.'"
The question presented here is not entirely dependent for its answer upon the determination of whether or not *Page 430 the trial judge granted a new trial upon his own motion or granted it upon the motion of the defendants, but is dependent primarily upon whether or not the defendants and their counsel waived the plea of jeopardy by sitting idly by and lulling the court into a sense of security and allowed the acceptance by the court of a verdict that is invalid without objection by defendants based upon the informities which appear on the face of the verdict. In this case the defendants objected to the acceptance of the verdict but the objections made were on untenable grounds and there was no objection upon the ground that the verdict did not name the degree of unlawful homicide of which the defendants were found guilty.
If we apply reason, as well as law, to this case we are bound to come to the conclusion that if the trial court had denied motion for new trial and entered judgments against the defendants and they had then sued out writ of error to this court that this court would have, on review of that judgment, reversed it and remanded the cause to the lower court for a new trial, just as was done in the Lovett case, supra.
Certainly the appellate court has no more power to reverse a judgment and grant a new trial because of errors apparent upon the record than the trial court has to set aside a verdict and grant a new trial when he, before judgment is entered, discovers that a fatal error appears on the record.
We are not required in this case to determine what our judgment would be if the defendants had pointed out the infirmity existing in the verdict when objecting to its being received and filed and the court had overruled that objection and, regardless thereof, discharged the jury. This is true because such question is not presented in the record before us at this time. *Page 431
For the reasons stated, our former judgment entered herein on June 16, 1938, is adhered to.
So ordered.
WHITFIELD, TERRELL, BROWN, BUFORD and CHAPMAN, J.J., concur.
ELLIS, C.J., dissents.