Ballard v. State

• Decision Date: 27 March 1893
• Citation: 12 So. 865,31 Fla. 266
• Parties: BALLARD v. STATE.
• Court: Florida Supreme Court

12 So. 865

31 Fla. 266

BALLARD v. STATE.

Florida Supreme Court

March 27, 1893

Error to circuit court, Marion county; Jesse J. Finley, Judge.

Lott M Ballard was indicted for murder. Defendant was convicted of manslaughter, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The allowance of separate trials on the application of parties jointly indicted rests in the sound discretion of the trial court.

2. That one of two parties jointly indicted is not ready for trial is not good ground for a severance on the application of the former; nor is the mere fact that one of the two will confess the alleged homicide as having been in self-defense on his part, whereas the other denies it as to himself.

3. The refusal of a severance, moved for on the ground that important evidence for the justice of the cause would be excluded on a joint trial, and be admitted on a severance and that the evidence which will be given directly against one will prejudice the cause of the other if they are tried jointly, such motion being supported by an affidavit of the defendants to the effect that 'the facts in the above motion are true,' cannot be held to have been error in the absence of a statement of the evidence which it was claimed would be excluded or be prejudicial.

4. Motions for a continuance are in the discretion of the trial court, and the action of that court on them will not be reversed unless there has been a palpable abuse of that discretion to the disadvantage of the accused, or whereby his rights may have been jeopardized. The rules as to granting continuances are substantially the same in civil and criminal causes, except as modified by the differences in procedure in the two classes of causes; yet affidavits for continuances should be scanned more closely in criminal than in civil cases, because of the superior temptation to delay presented by the former class. All facts necessary to show a clear abuse of discretion to the injury of the accused must be presented, and whereever the record is either silent or uncertain on any point material to establish such an abuse the presumptions are all in favor of the correctness of the ruling denying the motion.

5. On the 24th of October, 1892, the accused moved for a continuance, supporting it by his affidavit, stating that he was charged with murder as having been committed on the 27th day of the preceding month, that the indictment was returned on the 15th day of the stated October, and that the state announced ready for trial on the 24th, and that he could not safely proceed to trial, for the reason that he had not had sufficient time to prepare for his defense, that he had been in the county jail from the time of the alleged homicide to the time of making the affidavit, and had had no opportunity to prepare his defense and to consult counsel to the satisfaction of himself, and to properly inform them of all the facts in the case. Held, that there was no error in refusing to grant a continuance.

6. Where a motion for a continuance is made on the ground of great public excitement in the minds of the people of the county, which has put the accused in danger of violence necessitating guards for his protection, and is prejudicial to the accused, and gives just and reasonable cause for apprehending that a fair jury cannot be obtained, and such motion is not supported by any evidence corroborative of the affidavit of the accused, and there was no attempt to show that the accused was prevented by the stress of circumstances detailed from getting corroborative evidence, the exercise of discretion of the trial judge will not be interfered with.

7. Generally continuances will not be granted on account of the absence of a witness as to the good character of the accused. It is not error to refuse a continuance which is sought to enable the accused to procure the testimony of witnesses in another state to testify to the good character of the accused during a period spent by him in the penitentiary of that state, to which he was sent from this state, where his usual place of abode was at the time of his being sent there, and to which place of abode he returned immediately after his discharge from prison.

8. Where the affidavit for a continuance does not show when it was that the accused learned that the absent witness, for whose testimony the continuance is sought, would testify as alleged, the refusal of the continuance will not be interfered with by an appellate court.

9. At the common law no one of several persons jointly indicted for crime can be a witness for another of them until the case has been disposed of, by verdict or plea, as to the one offered; though it seems it is not necessary to proceed to sentence after verdict or plea of guilty. Nor do sections 1095 and 2863 of the Revised Statutes have the effect to make a witness of a joint or other defendant in a criminal cause. Section 2908 of the Revised Statutes regulates the status of such defendants as to making, under oath, statements to the jury of their defenses, and it is not error to refuse to permit one of two defendants, jointly indicted, to be sworn as a witness in behalf of the other before the case has been disposed of as to the former.

10. It is not error to refuse to charge the jury that they may find a verdict of manslaughter in the second degree, in a cause which has arisen since the Revised Statutes went into effect. No degrees of manslaughter are recognized by that revision.

11. It is not error to refuse a charge which invades the exclusive domain of the jury in dealing with the credibility of the accused in making the statement of his defense.

12. It is not error to refuse to charge a jury 'that a person whose life has been threatened by another is not bound to quit his business, but may pursue his ordinary lawful occupation, and if he meets with the person who has threatened him, and such person makes any overt act showing an intention to do the threatened person great bodily harm, or to take his life, the person threatened may thereupon lawfully kill the person so threatening him; although it may afterwards turn out that the deceased was unarmed, and the defendant in no danger.' The charge is defective in that it does not embrace the idea that the defendant reasonably believed when killing the deceased that he was in danger of losing his life or sustaining great bodily harm.

13. A defendant may, as a reasonable man, have believed that he was in danger of losing his life, or of incurring great bodily harm, and yet the killing may not, under some circumstances, be justifiable or excusable. One instance is where he has brought about the necessity without being reasonably free from fault. Again, the circumstances of a case may at least make it a question for the jury whether a killing was not in pursuance of a previously formed design to kill, instead of having been the result of a mere purpose of self-defense, although at the time of the altercation the first overt act may have come from the person slain.

14. Where the verdict is so clearly sustained by the evidence that any error which there may have been in refusing to give an instruction asked by the accused is palpably error without injury, a new trial will not be granted.

COUNSEL

Miller & Spencer, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

The other facts fully appear in the following statement by RANEY C.J.:

E. T. Bugbee, a witness for the state, testified that on the day of the killing, and soon after it, as he was going out of Ocala with J. W. Smith, he met the plaintiff in error coming in alone on Ochlawaha avenue, with his pistol in his hand, and was asked by him if he was going out on this street, and, having replied that he was, Ballard said to him 'I wish you would see that old man Shafer gets home all right;' and witness inquiring of him, 'Why?' he replied, 'I have shot him;' and in response to a further inquiry as to the reason for shooting him stated that Shafer had threatened his life, and he calculated he would get ahead of him. Witness then asked him if he supposed he had killed him, and Ballard held up his revolver, looked in it, and said he had put four bullets into him, or had shot him four times; witness could not tell exactly which, but it was one or the other expression. The pistol, he said, looked like the one in court. Witness then drove on fast, and found Shafer lying in his wagon, dead. On cross-examination he said that plaintiff in error stated that Shafer had threatened his life, and that he did not calculate to let him get ahead of him, and that he did not say anything about Shafer horsewhipping him. J. W. Smith's account of what passed between Bugbee and the accused was that the latter asked the former if he was going out that way, and Bugbee said he was, and Ballard said, 'I've just shot Mr. Shafer, and I wish you would see that he gets home all right;' and Bugbee asked. 'What did you do that for?' to which Ballard replied that Shafer threatened him, and 'I thought I'd get ahead of him.' Bugbee said, 'Did you kill him?' and then defendant took up his revolver so, (indicating,) and turned the cylinder, and said: 'I shot him four times.' Another witness, P. W. Whitesides, a deputy sheriff, says that on the same day, shortly after the homicide, plaintiff in error came in with his pistol, and laid it on the desk, and that he told witness he had shot Shafer, and that Shafer had fallen down in his wagon, and gone on towards home. That Shafer had overtaken him in the road, and commenced making his threats at him, and be shot him. That Shafer had said to him: 'You have come back, have you? I will fix you this time,' or something of that kind. That he didn't know if he had...