181 So. 354 (Fla. 1938), Hysler v. State

Citation:181 So. 354, 132 Fla. 209
Opinion Judge:[132 Fla. 212] PER CURIAM.
Party Name:HYSLER v. STATE (Case No. 2).
Attorney:[132 Fla. 211]Sam B. Wilson, of Jacksonville, for plaintiff in error. Cary D. Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen., for the State.
Judge Panel:BROWN, J., did not participate.
Case Date:February 03, 1938
Court:Supreme Court of Florida
 
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Page 354

181 So. 354 (Fla. 1938)

132 Fla. 209

HYSLER

v.

STATE (Case No. 2).

Florida Supreme Court, Division A.

February 3, 1938

         Rehearing Denied June 3, 1938.

         Error to Circuit Court, Duval County; Bayard B. Shields, Judge.

         Clyde Hysler was convicted of first-degree murder without recommendation to mercy, and he brings error.

         Affirmed.

         COUNSEL

Page 355

         [132 Fla. 211]Sam B. Wilson, of Jacksonville, for plaintiff in error.

         Cary D. Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen., for the State.

         OPINION

         [132 Fla. 212] PER CURIAM.

         In this case the defendant was convicted of murder in the first degree without recommendation to mercy. It is a companion case to case No. 1, 181 So. 350.

         In case No. 1 the accused was charged and convicted of the murder of John H. Surrency. In this case (No. 2) he was charged and convicted of the murder of Mayme Elizabeth Surrency. Both homicides occurred at the same time and place.

         The assignments of error and the questions involved are alike.

         The judgment here should be, and is, affirmed upon the authority of the opinion and judgment in the other case of Hysler v. State, 181 So. 350, filed at this term of the court.

         ELLIS, C.J., and TERRELL and BUFORD, JJ., concur.

         WHITFIELD, P.J., concurs in the opinion and judgment.

         CHAPMAN, J., concurs specially.

         BROWN, J., did not participate.

         CONCURRING

         CHAPMAN, Justice (concurring).

         On January 15, 1937, Clyde Hysler, Alvin Tyler and James Baker were indicted by a grand jury of Duval county, Fla., on a charge of murder in the first degree. The first count charged the three defendants as principals in the first degree for the unlawful killing of Mayme Elizabeth Surrency in Duval county, Fla., on the 25th day of November, 1936. The second count of the indictment charged Alvin Tyler with murder in the first degree in the unlawful killing of Mayme Elizabeth Surrency on the 25th day of November, 1936, in Duval county, Fla., and that James Baker and Clyde Hysler were each present, aiding, assisting, procuring, and counseling the said Alvin Tyler in the unlawful killing of Mayme Elizabeth Surrency. That on the 27th day of November, 1936, she died of and from mortal wound so inflicted.

         [132 Fla. 213] On February 25, 1937, the defendants Alvin Tyler and James Baker, upon arraignment, each filed pleas of not guilty to each count of the said indictment, when defendant Clyde Hysler, through counsel, requested additional time in which to plead to the said indictment. On March 15, 1937, the defendant, Clyde Hysler, through counsel,

Page 356

presented in the lower court his motion for a continuance of the trial of the cause for the then present term of the circuit court of Duval county, Fla. Other motions, pleas, and objections were presented and ruled upon by the lower court. On April 5, 1937, a jury rendered a verdict finding the defendant guilty of murder in the first degree. Defendant filed a motion for a new trial, was adjudged insolvent, judgment entered on said verdict, bill of exceptions signed, writ of error sued out, and the cause is here for review on several assignments of error for a reversal.

         It is contended that the lower court erred in overruling and denying defendant's motion for a continuance of the trial until the next term of said court. The motion recited that the defendant was arrested on December 12, 1936, on a charge of murder and had been continuously incarcerated in the common jail of Duval county, Fla., and that the defendant on December 16, 1936, was charged in two indictments with codefendants Baker and Tyler for the murder of John H. Surrency and his wife, Mayme Elizabeth Surrency. The court sustained a motion to quash the indictment, but accused was subsequently indicted with the codefendants and on January 21, 1937, placed on trial, which was concluded on February 12, 1937, resulting in a verdict of murder in the first degree, with recommendation, and sentenced to the State Penitentiary for his natural life. The indictments against the defendant involved the commission of two separate crimes, but grew out of one and the same transaction, but an order of severance had been [132 Fla. 214] entered by the lower court. Counsel was retained on December 14, 1936, and their entire time was consumed in the preparation of the defense of the trial of the case beginning January 21st and ending February 12, 1937; that counsel was engaged in the preparation of defendant's case and had not had sufficient time to prepare for the trial of their cause. The motion alleges prejudice against the family of the defendant on account of charges of crimes alleged to have been committed during the previous years by members of the Hysler family when the trial or trials therefor would occur in the courts of Duval county and bitterness and prejudice established against the defendant and other members of the Hysler family. The newspapers of Duval county gave considerable publicity to the crime for which defendant stands indicted, and intense feeling, excitement, and animosity existed in the minds of the inhabitants of Duval county against the defendant, which will not only be prejudicial, but will embarrass him obtaining a fair trial; that several other murder cases appear upon the criminal dockets in the courts of Duval county, coupled with the confinement of the defendant in the common jail of Duval county, and his inability to otherwise organize his defense will result in a miscarriage of justice if then placed on trial. The motion is sworn to by the defendant Clyde Hysler, and contains a certificate of counsel for defendant to the effect that a continuance of the trial of the cause is made in good faith. It is supported by a large number of affidavits. Other recitals appear unnecessary to be set forth in this opinion. Affidavits and other evidence was offered in opposition to the motion. The motion was denied by the lower court on March 16, 1937.

         The record shows the crime was committed on November 25, 1936, and the defendant arrested in connection therewith on December 12, 1936, and remained in custody [132 Fla. 215] continuously; that he was placed on trial on January 21, 1937, and the suit concluded February 12, 1937. It is alleged that prejudice existed against him in Duval county and the newspapers inflamed the public mind to his injury. An application for a continuance of a cause is addressed to the sound discretion of the trial court. This court in the case of Moore v. State, 59 Fla. 23, text page 30, 52 So. 971, 974, when reviewing an order of the lower court denying a motion for a continuance of the cause, said:

         '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 wherever the record is either silent or uncertain on any point material

Page 357

to establish such an abuse, the presumptions are all in favor of the correctness of the ruling denying the motion. Ballard v. State, 31 Fla. 266, 12 So. 865; Adams v. State, 56 Fla. 1, 48 So. 219; Webster v. State, 47 Fla. 108, 36 So. 584.

         'To justify an appellate court in holding the trial court in error in its ruling denying an application for a continuance in a criminal case, all facts necessary to show a clear abuse of discretion to the injury of the accused must be presented, and whenever the record is either silent or uncertain on any point material to establish such an abuse, [132 Fla. 216] the presumptions are all in favor of the correctness of the ruling. Gass v. State, 44 Fla. 70, 32 So. 109.'

         The law clothes a trial court with broad power and discretion to be exercised by him in his efforts to do substantial justice. It is difficult to fix a rule to govern trial courts when similar questions present themselves, but this court in the case of Reed v. State, 94 Fla. 32, text page 51, 113 So. 630, 637, when treating this point, said:

         'There is no general principle of law fixing the exact time which must elapse between the finding of the indictment and the beginning of the trial thereon, nor has the Legislature undertaken to fix any minimum time in such matters, but has left it to the discretion of the court to be governed by what is fair and reasonable in each particular case. What might be a sufficient time to prepare for trial in one case might be wholly insufficient in another. Therefore no hard and fast rule could be applied alike in all cases.'

         In the case of Coker v. State, 82 Fla. 5, 89 So. 222, a crime was alleged to have been committed on September 5, 1920, and the grand jury presented an indictment on December 20, 1920. The trial court received the indictment and asked if the defendant was in court. The defendant, over objection of counsel, was arraigned and required to plead. The defendant objected to being placed on trial because he had not had sufficient time to prepare his defense and denied time to reduce to writing a motion for a continuance. He was immediately placed on trial and convicted and the judgment was reversed when this court said:

         'The Constitution of this state provides that in all...

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