The appellant Barnhill was tried in the Criminal Court of Record of Polk County on a criminal information charging that on November 26, 1947, in Polk County, Florida, he "did unlawfully sell or cause to be sold intoxicating liquor, which said county had voted against the sale of intoxicating liquor, wines and beer; the said Loy Barnhill having entered previously, to-wit: January 20, 1947, a Plea of Guilty and having been adjudicated to be guilty by the Criminal Court of Record of Polk County, Florida, of the Possession of Liquor for the Purpose of Sale and the Sale of Liquor, in Polk County, Florida, which said county had voted against the sale of intoxicating liquors, wines and beer * * *"

At the conclusion of the evidence in the case the jury returned the verdict "We, the jury, find the defendant, Loy Barnhill, guilty as charged in the information, so say we all;" and upon that verdict the trial court sentenced the appellant to the state penitentiary for two years at hard labor.

The appellant has taken an appeal from the judgment and sentence and contends that the verdict rendered by the jury was legally insufficient as a predicate upon which to base a valid judgment committing the appellant to the state penitentiary.

Under the beverage law of this State, it is unlawful for any person to sell or to cause to be sold, any intoxicating liquors, wines, or beer in any county that has voted against the sale of intoxicating liquors, wines or beer. Sec. 568.02, Florida Statutes 1941, F.S.A. A person who for the first time has been lawfully convicted of a violation of the beverage law is deemed, under the law, to be guilty of a misdemeanor and is liable to be punished by a fine of not exceeding five hundred dollars or by imprisonment in the county jail for not more than six months. Sec. 568.05, Florida Statutes 1941, F.S.A. However, a person who has been lawfully convicted of a violation of any provision of the beverage law and thereafter is convicted of a further violation of the beverage law, is deemed, upon conviction, to be guilty of a felony, and to be punished by imprisonment of not less than one year nor more than five years in the State penitentiary or fined not more than five thousand dollars. Sec. 562.45, Florida Statutes 1941, F.S.A.

The question arising upon the appeal is whether, where a person has been charged as a "second offender" in the violation of the beverage laws of this state, a verdict of "guilty as charged in the information" is sufficiently certain to sustain a judgment imposing punishment as for the commission of a felony, under the terms of section 562.45, supra.

If this were not a case involving a second breach of the beverage laws, the verdict returned by the jury might have been sufficiently certain to support the judgment appealed from. For with respect to jury verdicts in criminal cases generally the rule appears to be that while a verdict must be certain and impart a definite meaning free from ambiguity, all fair intendments should be made to sustain it. Hence, any words that convey beyond a reasonable doubt the meaning and intention of the jury are sufficient; even though it may be necessary in a given case to construe the verdict in the light of the information to determine such meaning and intention. See Henderson v. State, 55 Fla. 36, 46 So. 151; Swilley v. State, 76 Fla. 535, 80 So. 310; Licata v. State, 81 Fla. 649, 88 So. 621. In such cases the verdict should be regarded from the standpoint of the jury's intention and when this can be ascertained such effect should be allowed to the findings, if not inconsistent with legal principles, as will clearly conform to their verdict. See Bunch v. State, 58 Fla. 9, 50 So. 534, 138 Am.St.Rep. 91; Yarborough v. State, 94 Fla. 143, 114 So. 237 and cases cited; Richardson v. State, 72 Fla. 154, 72 So. 665.

However, a different rule prevails in this State with respect to the requirements for certainty in verdicts rendered in cases involving second violations of the beverage laws. The rule is that where an accused is prosecuted under the "second offender" statute and the jury deems him guilty of having committed the "second offense", the verdict must find not only the guilt of the defendant as to the present violation but also the historical fact of the former conviction. If the verdict fails to comply with the rule it will not be sufficiently certain to support a judgment and sentence for a felony.

The first of the cases which stated the rule was State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 101 So. 228, 231, decided in 1924. Lockmiller, a petitioner in habeas corpus, was discharged from custody under a sentence based on a judgment which, according to the opinion of this court, was void by reason of the fact that the indictment "charged no offense" under the beverage statutes and "was wholly defective as charging a second offense." In disposing of the case the court stated, in what may have been a dictum but which since has become the controlling rule: "In the trial of a person as a second offender * * * for a violation of the intoxicating liquor law * * * two questions, which in a sense are unrelated, are involved. The first is that of guilt or innocence of the offense charged * * *. The second question is the historical fact of former conviction for the crimes named, and identity of the defendant as the prior criminal.

"We are of the opunion that in such cases the jury should be instructed, in the event of finding the defendant guilty, to separately find and state their findings in the verdict whether the defendant had been formerly convicted as charged in the indictment.

"In the case of a prosecution of a second offender for the violation of the intoxicating liquor act, the charge to be tried is the manufacture, or sale, or possession for sale, or transportation for sale, of alcoholic or intoxicating liquors. If the verdict is not guilty, that, of course, is an end of the case; if it is guilty, but the jury is not satisfied of the identity of the defendant as one who had been formerly convicted, the verdict should so state, and the penalty for a first offense would be applicable; but if the jury found against the defendant also on the second proposition, it is equally important that their verdict should so state. * * * A verdict of `guilty' in such a case where penalties for a second or third offense are invoked is regarded as not responsive to the allegations of the indictment or information."

The next case was that of Benson v. State, 88 Fla. 103, 101 So. 231, also decided in 1924 and released the same day as the Lockmiller case. The record on appeal shows that Benson was indicted in two counts for unlawfully having in his possession a certain quantity of intoxicating liquors as a second offender and for unlawfully transporting such liquors as a second offender. The verdict of the jury was "We, the jury, find the defendant guilty of first count, so say we all." Upon that verdict the trial court imposed the greater penalty provided for second offenses and the defendant appealed. The indictment was found defective, as in State ex rel. Lockmiller v. Mayo, supra, and the judgment was reversed. In this case the court declared: "When a person is indicted and tried for a violation of the intoxicating liquor law as a second offender, it is the safer practice, if not indeed essential, that the jury should expressly find the historical fact of a former conviction. * * * Whether a verdict of guilty is responsive to the allegations of the indictment as to the prior conviction, is doubtful."

The third case in which this court gave expression to its views was that of Coulson v. State, 110 Fla. 279, 149 So. 521, 522 decided in 1933. Coulson was prosecuted for the violation of the State prohibition laws and was found guilty. Judgment was entered and Coulson appealed from the judgment and sentence. Upon the appeal the Attorney General conceded that the judgment of conviction could not stand because the verdict of the jury was fatally defective in that it did not expressly determine separately the historical fact of the appellant's first conviction as was alleged in the circuit court indictment. Upon this appeal the court stated: "When a person is indicted for, and tried for a violation of, the intoxicating liquor law as a second offender under section 7630, Comp.Gen.Laws, section 5486, Rev.Gen.St., the jury should expressly determine separately the question of the historical fact of the defendant's former conviction as alleged. * * * The verdict in this case is simply: `We the Jurors find the defendant guilty of first and second count James Hobbs, Foreman.' We hold, in line with the case above cited and the contention of plaintiff in error, that under such a verdict no judgment of conviction for a second offense violation of the liquor law was not (sic.) authorized; therefore this writ of error is well taken, and the judgment must be reversed and the cause remanded, with directions to have such appropriate proceedings as may be in accordance with law. Reversed and remanded, with directions."

The last of the cases involving the sufficiency of the verdict to sustain a judgment for the greater offense was that of Coulson v. State, 110 Fla. 281, 149 So. 522, also decided in 1933.

Coulson was indicted as a second offender of the beverage laws. The verdict of the jury was, "We the jurors find the defendant guilty as charged, R.T. King, Foreman." Upon appeal this court stated, "In the present case the verdict of the jury did not expressly determine separately, as we have held must be done, the historical fact of the defendant's former conviction as alleged. Benson v. State, 88 Fla. 103, 101 So. 231. A verdict of `guilty' in a case like this, where more severe penalties for a second or third offense are invoked, is not regarded as responsive to the allegations of the indictment charging a given criminal act as constituting a second offense in order to lay the predicate for an increased penalty on conviction. State ex rel. Lockmiller v. Mayo, supra. Therefore such verdict should have been set aside on defendant's motion and a new trial awarded. Reversed for a new trial."

Under the cases cited the rule has become established in this jurisdiction that upon the trial of a defendant for the second violation of the beverage laws of this state two different and distinct but related issues are involved. The first is that of the guilt or innocence of the defendant of the offense charged and for which he is presently on trial; the second is the historical fact of the former conviction for the crime named in the criminal accusation, and the identity of the defendant as the perpetrator. These issues must be expressly determined separately, and the jury should be advised of that fact.

For the sake of clarity it might be well to charge the jury, also, that under the applicable statutes and the indictment or information specifically containing a criminal charge as to both issues involved three forms of verdicts were possible of rendition, depending upon the evidence or lack of evidence adduced at the trial, namely:

(1) If the evidence proves beyond a reasonable doubt both issues as specifically charged in the indictment or information the defendant may be found guilty as to both issues; and in such event the verdict should contain a finding of the commission of the particular present act charged in the indictment or information under which the defendant is then on trial and also a further separate finding of the prior conviction of the defendant of a violation of the beverage laws, as also charged in the indictment or information.

(2) If the evidence satisfies the jury beyond a reasonable doubt of the guilt of the defendant as to the present violation of the beverage laws charged in the indictment or information, but leaves doubt in the minds of the jury as to the prior conviction charged, the defendant may be found guilty on the first issue and not guilty as to the second; and in such an event the verdict should find the defendant guilty of the present violation but not guilty as to the prior conviction.

(3) If the evidence fails to satisfy the jury beyond a reasonable doubt as to whether the defendant is guilty of the present violation charged, the defendant should be found not guilty as to the whole charge.

If the jury returns the first verdict suggested above, the entry of a judgment and the imposition of a sentence for a felony would be authorized under section 562.45, supra. If the second suggested verdict is returned, a judgment and penalty as for a misdemeanor would be proper. If the finding of the jury should be "not guilty", that, of course, would be the end of the matter and the defendant would be entitled to his discharge.

It may be well, in closing to call attention to Adkison v. State 88 Fla. 359, 103 So. 121, and Ballard v. State, 93 Fla. 516, 112 So. 47. At first reading these decisions may appear to be in conflict with the views expressed in this opinion. A study of the Adkison case will reveal that the question of "prior conviction" was not properly an issue in that case; the defendant having confessed in open court his conviction for the prior offense. In Ballard v. State some incorrect expressions appear as respects the sufficiency of a general verdict to sustain a charge of "second offense". The judgment appealed from was reversed because of lack of evidence to sustain the charge of "prior conviction" and we do not regard the question of the sufficiency of the verdict to have been a real issue in the case.

The Attorney General makes the contention that the rule of Coulson v. State, supra, is not applicable on this appeal because the statute upon which the rule was based was entirely different from the statute in question in the present case. We find no merit in this contention. Though the language used in the two statutes may vary in some particulars, we think that the statutes are substantially alike in principle and that the rule laid down under the statute in existence when Coulson v. State was decided is applicable to prosecutions arising under our present beverage laws.

It follows that the judgment appealed from must be reversed and the cause remanded for a new trial as to both issues.

It is so ordered.

ADAMS, C.J., and TERRELL, CHAPMAN and THOMAS, JJ., concur.

HOBSON, J., concurs specially.

BARNS, J., dissents.

HOBSON, Justice (concurring specially).

I hold the view that the verdict of the jury which read: "We, the jury, find the defendant, Loy Barnhill, guilty as charged in the information, so say we all" is legally sufficient as a predicate for the judgment and sentence which was entered consequent thereon by the Circuit Judge. It is my further opinion that such conclusion finds ample support in the following cases: Henderson v. State, 55 Fla. 36, 46 So. 151; Swilley v. State, 76 Fla. 535, 80 So. 310; Licata v. State, 81 Fla. 649, 88 So. 621; Bunch v. State, 58 Fla. 9, 50 So. 534, 138 Am.St.Rep. 91; Yarborough v. State, 94 Fla. 143, 114 So. 237 and Richardson v. State, 72 Fla. 154, 72 So. 665.

However, this Court has committed itself to the rule that in a case of this type the verdict of the jury must contain an express finding of the fact of a prior conviction. As has been pointed out by Mr. Justice Sebring, this axiom originally found its way into the law of this State as obiter dictum. Nevertheless, in more than one of our decisions we adopted such rule and we should adhere to it. Consequently, I concur in the majority opinion. However, I do so only because I conceive it to be my duty to yield an individual view and to stand by former holdings of this court. It is my conviction that by so doing I may lend assistance to the stability of the law. Too many split decisions, particularly where they stand 4 to 3, are not conducive to such stability. Indeed, they tend to encourage vacillation and leave an open door for adventitious ravaging of the doctrine of stare decisis et non quieta movere. It shall be my purpose, insofar as I am able, to avoid such split decisions. I will be a party thereto only in a case where the law has not been definitely established or, if it has been established, I entertain no doubt that the premise therefor is unsound and a real injustice would be effectuated by adhering to it.

I do not believe that there is any sound basis for the rule that the verdict of the jury should contain an express finding of the fact of a former conviction but it appears that such is the established law in this jurisdiction, and no injustice will be wrought by cleaving thereto.

Furthermore, I see no occassion to hold that the judgment and sentence is severable as appears to be the conclusion of Mr. Justice Barns as presented in and by his dissenting opinion. Moreover, I doubt the power of this Court to so hold because Section 12 of the Declaration of Rights declares "No person shall be subject to be twice put in jeopardy for the same offense * * * nor be deprived of life, liberty, or property without due process of law". This criminal case found its way into the Circuit Court only because of the charge of a former conviction. Authority therefor is contained in the prior conviction provision of Section 562.45, F.S.A. Said statute fails to provide for any independent proceeding upon the subject of prior conviction. To this extent it is unlike our statutes, Sections 775.09 and 775.10, F.S.A., which provide severally for punishment for a second and a fourth conviction of a felony. These statutes are followed by Section 775.11, which makes provision for an independent prosecution, at any time after sentence or conviction, of a person who shall have been convicted of one or more crimes which constitute felonies.

The charge of the instant offense and the charge of a former conviction standing together presented a single criminal case with punishment upon conviction on both accusations as for a felony. Of course, the verdict of the jury in a case of this kind might be a finding of guilt of the defendant on only the lesser complaint of an unlawful sale of intoxicating liquor. But if we sustain such a verdict the defendant could not be tried again on the same dual aspect information because he would thus be placed in a position of double jeopardy; nor could he be tried upon the single charge of former conviction for such charge does not state a criminal offense under any law of this State.

Consequently, this case should be reversed and remanded for a new trial upon the original information which contains the two accusations or it should be affirmed.

For the reasons previously expressed herein, I concur in the judgment of reversal.

BARNS, Justice (dissenting).

The question is: Should the entire judgment be reversed because of the sentence being vulnerable? I think not.

The appellant Barnhill was tried in the Criminal Court of Record of Polk County on a criminal information charging that on November 26, 1947, in Polk County, Florida, he "did unlawfully sell or cause to be sold intoxicating liquor, * * * the said Loy Barnhill having entered previously, to-wit: January 20, 1947, a Plea of Guilty and having been adjudicated to be guilty by the Criminal Court of Record of Polk County, Florida, of the possession of Liquor for the Purpose of Sale and the Sale of Liquor, in Polk County, * * *."

At the conclusion of the evidence in the case the jury returned the verdict: "We, the jury, find the defendant, Loy Barnhill, guilty as charged in the information, so say we all"; and upon that verdict the trial court sentenced the appellant to the State penitentiary for two years at hard labor.

Under the beverage law of this State it is unlawful for any person to sell or to cause to be sold, any intoxicating liquors, wines, or beer in any county that has voted against the sale of intoxicating liquors, etc. Secs. 568.02- 568.04, Florida Statutes 1941, F.S.A.

The question arising upon the appeal is whether a verdict of "guilty as charged in the information" is sufficiently certain to sustain a judgment imposing punishment under the terms of Section 562.45, Florida Statutes 1941, F.S.A.

The case of Coulson v. State, 110 Fla. 281, 149 So. 522, involved a judgment and sentence as a second offender against the liquor law, to-wit: Sec. 7630, C.G.L. The verdict was: "We the jurors find the defendant guilty as charged."

Upon appeal the complaint was that the prior conviction "was not sufficiently proven" and this Court held that "the verdict should have been set aside on defendant's motion and a new trial awarded" and the cause was "reversed for a new trial."

The case of Coulson v. State, 110 Fla. 279, 149 So. 521, involved a second offense against the liquor law, to-wit: Sec. 7630, C.G.L., and the verdict of the jury was: "We, the jury, find the defendant guilty of first and second counts."

The complaint upon appeal was that "the verdict of the jury is fatally defective in that it did not expressly determine separately the historical fact of the plaintiff in error's first conviction, as alleged in the Circuit Court indictment." In disposing of the appeal, this Court held:

"We hold, in line with the case above cited and the contention of plaintiff in error, that under such a verdict no judgment of conviction for a second offense violation of the liquor law was not authorized, therefore this writ of error is well taken and the judgment must be reversed and the cause remanded with directions to have such appropriate proceedings as may be in accordance with law.

"Reversed and remanded with directions." (Italics supplied.)

It will be noted that in Coulson v. State, 110 Fla. 279, 149 So. 521, wherein the question of jury's determination of a prior conviction under a verdict similar to the verdict in the case at bar was involved, the cause was not reversed for a "new trial" as in 110 Fla. 281, 149 So. 522, but was "reversed and the cause remanded, with directions to have such appropriate proceedings as may be in accordance with law." Such should be the judgment of this Court on this appeal.

An "offense" is an infraction of the law, and the independent and indispensable language of the charge of the "offense" against this appellant was that he "did unlawfully sell or cause to be sold intoxicating liquor," etc., which under the law, without other factors, is a misdemeanor and subject to prescribed punishment. However, it is provided by Section 562.45, F.S. 1941, F.S.A.:

"* * * that any person, who shall have been convicted of a violation of any provision of the beverage law and shall thereafter be convicted of a further violation of the beverage law, shall, upon conviction of said further offense, be deemed guilty of a felony * * *."

Under Section 562.45, supra, the "offense" is made a felony when committed by one "convicted of a further violation of the beverage law." This makes it clear that when one is once convicted of the violation of the beverage law that a further "offense" against such law constitutes a felony.

When the prosecuting authority is so informed, it is highly proper, and by no means improper, for the accused to be advised of the consequences that ensue because of an antecedent conviction. However, subsequent conviction of the infraction of the law is a statutory condition precedent to the question of a prior conviction becoming material.

When it is not objected to, the admission of evidence of a prior conviction is not essentially reversible error, but it would likely be more conducive to a fair trial for the determination of a prior conviction to be determined after the subsequent conviction by the same jury, another jury or by the court, if the circumstances permit.

In order to divorce the infraction or offense vel non from the prior conviction, so as to conveniently exclude it from the jury trying the subsequent offense, it might be well to present the suggestion, information or presentment of the prior offense in a separate document or in a separate paragraph of the information or indictment, which would not necessarily be read to the jury trying the offense or infraction charged.

The factor of the conviction being preceded by a prior conviction is germane to the consequences of second conviction, as to its making the offense a felony and subject to a more severe punishment or penalty.

Should the entire judgment be reversed because of the sentence being vulnerable? I think not. It appears that the verdict was sufficient to sustain a judgment of guilt of the offense charged, but there was no express finding of the jury as to a prior conviction of a violation of the liquor law; wherefore the judgment of guilt of the offense charged should be affirmed, but reversed for further proceedings for the determination of a prior conviction vel non and the imposition of a proper sentence.

Barnhill v. State

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Barnhill v. State

Barnhill v. State

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Barnhill v. State

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Barnhill v. State

Barnhill v. State

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