Gass v. State

• Decision Date: 19 March 1902
• Citation: 44 Fla. 70,32 So. 109
• Parties: GASS v. STATE.
• Court: Florida Supreme Court

32 So. 109

44 Fla. 70

GASS v. STATE.

Florida Supreme Court

March 19, 1902

Error to circuit court, Alachua county; William S. Bullock, Judge.

William Gass was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. 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 the presumptions are all in favor of the correctness of the ruling.

2. No abuse of discretion in the ruling denying an application for a continuance on the ground of the absence of a material witness is shown, where the application admits that the witness has not been served with subpoena because not found and that at the time of the application such witness is in another state, and where the application does not state that the witness is a resident of this state, and only temporarily absent in such other state, or other facts showing that, if the case is continued, his presence can be secured at the next term of the court.

3. A general exception to the refusal to give two or more requested instructions asserting separate and distinct propositions of law will be overruled if it appears that any one of such instructions was properly refused.

4. An instruction that: 'The court instructs the jury that it is incumbent upon the state to prove every material allegation of the indictment as charged therein. Nothing is to be presumed or taken by implication against the defendant. The law presumes him innocent of the crime with which he is charged until he is proven guilty, beyond a reasonable doubt by competent evidence; and if the evidence in this case leaves upon the minds of the jury any reasonable doubt of defendant's guilt, the law makes it your duty to acquit him and find him not guilty,'--is properly refused.

COUNSEL Jackson & Thomas, for plaintiff in error.

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

OPINION

CARTER J.

On December 11, 1901, in the circuit court of Alachua county, an indictment was found by the grand jury charging plaintiff in error with murder in the first degree. He was tried at the same term of the court, found guilty as charged, with recommendation of mercy, and, from the sentence imposed, sued out this writ of error.

I. The first error assigned is based upon the ruling denying defendant's motion for a continuance. In the affidavit filed with the motion it is averred that defendant was arraigned on the day the indictment was presented, viz December 11th, and that the trial of the case was then set for Tuesday, December 17th; that being the day the trial was begun, and upon which the continuance was applied for. It is also averred that, immediately after the cause was set for trial, defendant had subpoenas issued for his witnesses including one John Gardner, and that the sheriff had made his return that Gardner could not be found in the county, and therefore service could not be perfected upon him. It is further alleged 'that said witness is out of the limits of the state of Florida, and in the city of Montgomery, Alabama'; that the witness was absent without defendant's consent; and that defendant expected to have him present, and to have his testimony given, at the next term of the court. The affidavit fails to state whether the witness is a resident of the state of Florida, or whether he was located permanently, or only temporarily, in Montgomery, Ala. It does appear inferentially that at the time of the alleged homicide, September 15, 1901, the witness was living in Alachua county; but, for aught that appears, at the time the indictment...