The principal question presented in this case is whether the verdict is sufficiently certain to sustain the judgment.

The plaintiff in error, Bonnie Vogel, was informed against in the Criminal Court of Record for Dade County, upon the charge of feloniously assaulting Clayton Vogel from a premeditated design to effect his death. The offense was alleged to have been committed in April, 1935, in Dade County.

The accused was tried in June, 1935, and the jury returned a verdict in the following words: "We, the jury, find the Defendant Bonnie Vogel Guilty of attempted *Page 414 Manslaughter, with the recommendation of mercy. So say we all." It was signed by the foreman. Judgment of conviction was entered, and sentence of imprisonment by confinement at hard labor in the State "Penitentiary" for a term of ten years was imposed.

The brief for plaintiff in error undertakes to present the point, but the record does not disclose that any question was raised as to the form or substance of the verdict before the trial court.

An attempt in a motion for a new trial was made to attack the verdict. The grounds alleged were that the verdict stated no offense under the law; that it was unintelligible so that one "could not determine the extent or effect of said verdict against the Defendant."

An oral motion in arrest of judgment was made according to a recitation of the fact contained in the record proper. The bill of exceptions states that counsel for the accused moved in arrest of judgment "on the ground that the information was not read to the jury, and that evidence was submitted that the jury should not consider in this case." It appears that both motions were overruled.

If there is any defect in the verdict it is a matter which appears on the face of the record and should have been attacked by a motion in arrest of judgment. See Ball Bros. v. Holland,76 Fla. 268, 79 South. Rep. 635; Lewis v. State, 87 Fla. 37, 98 South. Rep. 917; Henderson v. State, 55 Fla. 36, 46 South. Rep. 151; Caldwell v. People's Bank of Sanford, 73 Fla. 1165, 75 South. Rep. 848; Golding v. State, 31 Fla. 262, 12 South. Rep. 525; Lake v. State, 100 Fla. 373, 129 South. Rep. 827; Ephriam v. State, 82 Fla. 93, 89 South. Rep. 344; Taylor v. State, 88 Fla. 555, 102 South. Rep. 884; Sawyer v. State, 94 Fla. 60, 113 South. Rep. 736. *Page 415

Such motions are made after verdict and before judgment but they are not favored. When a verdict is defective on its face a motion in arrest of judgment is the proper method of attack. See Harris v. State, 53 Fla. 37, 43 South. Rep. 311.

The verdict, however, must be so defective as a matter of record that judgment cannot be legally entered thereon. Harris v. State, supra.

If the verdict finds an accused person guilty of an offense not charged, or included in the charge made in the information or indictment, the motion in arrest of judgment should be granted. Hogan v. State, 42 Fla. 562, 28 South. Rep. 763.

No attack having been made upon the verdict by a motion in arrest of judgment but only through the medium of a motion for a new trial, which is the means by which some matter in pais is relied upon to show the error and which must be exhibited by a bill of exceptions, the point must be considered waived unless indeed the verdict is a brutum fulmen, an empty sound, a senseless, meaningless thing which signifies nothing.

In the case of Hogan v. State, supra, the Court held that the jury by their verdict found the defendants guilty of an offense not charged. It was then pointed out that the indictment was defective in failing to allege that the defendants committed the assault with the intent to commit the felony. The offense which was intended to be charged was assault with intent to commit murder.

The allegations of the information in this case are sufficient. So the question is whether the verdict is so vague, uncertain or ambiguous as to render the court incapable of giving judgment upon it. The verdict should be certain, import a definite meaning; should show what the jury intended. *Page 416 Bryant v. State, 34 Fla. 291, 16 Sou. Rep. 177; Sawyer v. State,94 Fla. 60, 113 South. Rep. 736; Washington v. State, 55 Fla. 194, 46 So. 417; Licata v. State, 81 Fla. 649, 88 South. Rep. 621; Richardson v. State, 72 Fla. 154, 72 South. Rep. 665; Long v. State, 42 Fla. 612, 28 South. Rep. 855; Morris v. State,54 Fla. 80, 45 South. Rep. 456, 14 Ann. Cas. 285; Bunch v. State,58 Fla. 9, 50 South. Rep. 534, 138 Am. St. Rep. 91; Yarborough v. State, 94 Fla. 143, 114 South. Rep. 237.

Any words that convey beyond a reasonable doubt the jury's meaning are sufficient. See Licata v. State, supra; O'Neal v. State, 54 Fla. 96, 44 South. Rep. 940; Niblack v. State, 70 Fla. 227, 70 South. Rep. 415; Higginbotham v. State, 42 Fla. 573, 29 South. Rep. 410, 89 Am. St. Rep. 237; Long v. State, supra; Johns v. State, 46 Fla. 153, 35 South. Rep. 71; Morris v. State, supra; Blackwell v. State, 101 Fla. 997, 132 South. Rep. 468.

The language of the verdict is "Guilty of attempted Manslaughter." The charge was assault from a premeditated design to effect the death of a human being. Assault to commit murder is also a felony. See Sec. 7165, C.G.L. 1927.

Assault with intent to commit manslaughter is a crime in this State. Bryan v. State, 45 Fla. 8, 34 South. Rep. 243; Johnson v. State, 53 Fla. 45, 43 South. Rep. 779; Feagle v. State, 55 Fla. 13, 46 South. Rep. 182.

A person guilty of such an offense may be convicted and punished under Section 7165, supra. Williams v. State, 41 Fla. 295, 26 South. Rep. 184.

So under the information the accused could be convicted of the crime of assault with intent to commit manslaughter. Griffin v. State, 72 Fla. 79, 72 South. Rep. 474; Evans v. State, 68 Fla. 79, 66 South. Rep. 421. *Page 417

The word "attempted" does not destroy the meaning of the verdict. It carries the significance of an intent. See Bunch v. State, supra.

So the phrase "guilty of attempted manslaughter" cannot be said to be so vague, uncertain and meaningless as to render the court incapable of giving judgment upon it. The word attempted is a form of the verb "attempt," which means: to make trial, to try, to endeavor to do or perform. Webster's New International Dictionary.

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 of assault, having an intent to do or commit manslaughter. The verdict therefore is sufficient.

The majority opinion, which grew from Mr. Justice BUFORD'S dissent from the opinion originally prepared and submitted by me, seems to rest upon the assumption that an attempt to commit a crime of personal violence does not necessarily involve an overt act toward the accomplishment of the intent to commit the particular crime. In different words a person may be guilty of an attempt to commit murder without doing an overt act toward accomplishing the desired result, Such a doctrine finds no support in any of the books.

The rule, upon the contrary, is that even where preparation is made to commit a crime — and preparation to commit crime means purpose, design, intention to commit the unlawful act — some overt act must be done which moves directly toward the commission of the offense after preparations are made before it can be said that an attempt has been made to commit the crime.

Section 7544, C.G.L., 1927, defines no new offense in *Page 418 criminal law. The section of the statutes merely defines the common law offense of attempt to commit crime. State v. Younds (Mich.), 47 L.R.A. 108. There is conflict in the decisions upon this subject of investigation only as the offense of "attempt" is sought to be applied to the facts in the particular case. There is no conflict among the authorities as to the elements of the crime in the abstract, as, for instance, the element of specific intent. A mere guilty mind is not sufficient. The law does not punish a mere intent, however specific, unless the intent is coupled with an act in pursuance of such intent. Yet, every act done in pursuance of the intent does not constitute an "attempt." To constitute an "attempt" the act must be sufficiently near to the last act intended; to be something more than mere preparation to commit the intended crime.

The conflict of authority arises upon the application of the above elements of the crime to the facts in the particular case. There may be the question of physical inability to commit the crime intended, as that the object at which the act is directed is not within reach of the accused, or that the means used by the accused were not adapted to securing the end desired. Conflict also arises on the proximity of the overt act, done in furtherance of the preparation, to the crime intended to be committed. The evidence often presents a question of degree, of proximity to the end desired, of the act done in pursuance of the preparation to commit a crime.

Upon such matters there is much conflict among the authorities, but not on the elements constituting the abstract crime. See III M.A.L. 59, 63; XV M.A.L. 104, 105; 1 Whart. Cr. Law (8 Ed.) 173; 1 Russ. Cr. (9 Ed.) 83; McDermott v. People, 5 Park. Cr. Rep. (N.Y.) 102; Uhl v. Commonwealth, 6 Gratt. (Va.) 706; Kunkle v. State, *Page 419 32 Ind. 220; Reg. v. Roberts, 7 Cox C.C. 39; Cox v. People,82 Ill. 191; Com. v. Peaslee, 177 Mass. 267, 59 N.E. Rep. 55.

There is a great difference between antecedent preparation to commit a crime and an attempt to commit it. Reg. v. Cheeseman, 9 Cox. C.C. 100; Reg. v. Taylor, 1 Fost F. 511, 175 E. Rep. 831; People v. Murray, 14 Cal. 159; 8 R.C.L. 279.

It has been held that where an attempt is averred, that some act constituting such attempt, as an assault, should be laid. Com. v. Clark, 6 Pratt (Va.) 675.

An attempt "`is such an intentional preliminary guilty act as will apparently result, in the usual course of natural events, if not hindered by extraneous causes, in the commission of a deliberate crime.'" State v. Butler, 8 Wash. 194, 25 L.R.A. 434.

It has been held that a person cannot be guilty of an attempt to commit an offense which he is physically impotent to perpetrate. Foster v. Commonwealth (Va.) 42 L.R.A. 589.

Manslaughter is the killing of a human being by the act, procurement or culpable negligence of another in cases where such killing shall not be justifiable or excusable homicide nor murder. Sec. 7141 C.G.L. 1927. There are several forms of manslaughter defined by statute, but all are forms of unlawful homicide.

The case of Devoe v. Tucker, 113 Fla. 805, 152 South. Rep. 624, cited in the majority opinion merely held that Section 7544 C.G.L. supra, punishing "attempts," was not applicable to the facts of the case. The justice writing the opinion merely said there was a distinction between an "`attempt' to commit an offense under Section 7544, and an `assault with the intent to commit' such offense." *Page 420

It is impossible to apply those words with the slightest degree of accuracy to an assault with intent to commit manslaughter.

When it is considered that any gesture or threat of violence exhibiting an intention to assault, unless immediate contact is impossible, is an "assault" (Bishop v. Ranney, 59 Vt. 316, 7 Atl. Rep. 820; State v. Baker, 20 R.I. 275, 38 Atl. Rep. 653, 78 Am. St. Rep. 863; Mailand v. Mailand, 83 Minn. 453, 86 N.W. Rep. 445; 5 C.J. 720) and that an "attempt" means an intention to commit the act of physical violence coupled with an act or movement in execution of the intent sufficiently near to the consummation of the purpose to make it probable it is impossible to conceive a case where an attempt to commit a felony would not be an assault to that end.

The illustration given in the majority opinion is one showing an assault. If "A" is "about to perpetrate an assault" upon "B," and has to be "overcome" to prevent the attempt to commit violence upon "B," then "A" has already committed an assault.

The majority view is, to my mind, an overrefinement, an "over-leaping" of the law, resulting in defeat of its salutary provisions. The distinction attempted to be drawn in the Bevoe case cannot be sustained because it cannot be applied to crimes of physical violence, as the futile attempt in the majority opinion proves.

I repeat therefore that the verdict was not a brutum fulmen; that it must be construed with reference to the information and entire record and all fair intendments should be made to sustain it; Higginbotham v. State, 42 Fla. 573, 29 South. Rep. 410, 89 Am. St. Rep. 237; Morris v. State, 54 Fla. 80, 45 South. Rep. 456, 14 Ann. Cas. 285; Blackwell v. State, 101 Fla. 997, text 1011, 132 South. Rep. 468; and *Page 421 that it was sufficient in form, substance and law, because no other interpretation could be placed upon it than that the jury found Bonnie Vogel to be guilty of an effort in pursuance of an intent to commit manslaughter upon her husband, which is an assault with intent to commit that crime.

On the question of the sufficiency of the evidence, I do not find in it such inherent weaknesses as to justify the court in the conclusion that it is without any substantial supporting value to the verdict. According to the account of the transaction by the husband of the woman, the verdict is fully supported. It is true that the scene of the alleged crime, the apartment of the Vogels, and the performance carried on there by the man, his wife and a man visitor, who had come into the house about one o'clock in the afternoon in a semi-intoxicated condition and continued to drink whiskey until he was completely under its influence, constituted a situation most unusual in detail.

The parties had, by their conduct, converted the living rooms of the host and hostess into a scene of such coarse vulgarity and sexual debauchery that a jury might have very well believed the shot to have been fired accidentally, but they did not. The testimony of the woman emphasized the lewdness of the men to which she was for a time complaisant, but failed to convince the jury that she was without guilty participation in the lascivious practices of the three of them. In that horrible situation the pistol was fired. The jury believed possibly that she fired the shot at her husband in a temporary revulsion of feeling induced by her drunken, lascivious debauchery, but the jury found no extenuating fact in those circumstances, and we are unable to say that it existed. *Page 422

Other assignments of error have been examined, and we find no merit in them.

The judgment should be affirmed.

TERRELL, J., agrees to the conclusion.