Ex Parte: Harvey Wilson , 153 Fla. 459 ( 1943 )

We issued a writ of habeas corpus to test the sufficiency of a verdict and judgment of conviction wherein petitioner was charged with armed robbery. The information was substantially in the language of the statute, Sec. 813.01, Fla. Stat. 1941, in that it charged petitioner was armed with a dangerous weapon with intent, if resisted, to kill or maim the person robbed.

The verdict read:

"We the Jury find Harvey Wilson and Willard Wilson guilty of armed robbery as charged. But with no intention to kill or maim. But recommend mercy of the Court. So say we all."

The judgment followed the form of the verdict but the punishment imposed conformed to the statute for unarmed robbery. See Sec. 813.02, Fla. Stat. 1941.

Our statute, (Sec. 919.18, Fla. Stat. 1941) prescribes the procedure in case the verdict is fatally defective. In this case however the trial judge was of the opinion that the verdict was not fatally defective although it was irregular. The trial judge had no doubt that the jury intended to convict the defendant of an offense. It was also apparent that they found him not guilty of an essential element of armed robbery to-wit: the intent, if resisted, to kill or maim. This element was not essential to convict of unarmed robbery. A charge of armed robbery also includes a charge of unarmed robbery. Blanco v. State, 150 Fla. 98, 7 So.2d 333, Martin v. State,100 Fla. 16, 128 So. 869. The verdict will be upheld if it is sufficiently definite to show beyond a reasonable doubt the meaning and intention of the jury and all fair intendments should be made to uphold it. Licata v. State, 81 Fla. 649, 88 So. 621.

It is our conclusion the verdict was not fatally defective nevertheless it has been the settled law that the proper method of attack on a defective verdict is by motion in arrest of judgment. Harris v. State, 53 Fla. 37, 43 So. 311. Now that the motion in arrest of judgment in criminal cases has been dispensed with by Sec. 239 of the Criminal Procedure Act the verdict would have been properly tested by motion for a new trial.

The writ should be quashed.

CHAPMAN, J., concurs.