Adams v. State

Citation56 Fla. 1,48 So. 219
PartiesADAMS v. STATE.
Decision Date11 December 1908
CourtUnited States State Supreme Court of Florida

Headnotes Filed Jan. 29, 1909.

In Banc. Error to Circuit Court, Hernando County; William S Bullock, Judge.

January Adams was convicted of murder in the second degree, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The rule prevailing here in granting continuances in criminal cases is the same as the one that obtains in civil cases except that in criminal cases the grounds for the motion should be scanned more closely than in civil cases, on account of the superior temptation to delay.

An application for a continuance of a cause is addressed to the sound discretion of the court, and the action of the trial court thereon will not be reversed unless there has been a palpable abuse of that discretion to the injury of the accused.

All facts necessary to show a clear abuse of the discretion of the court in ruling upon an application for the continuance of a cause to the injury of the defendant must be presented and, whenever the record is either silent or uncertain on any point material to establish an abuse of such discretion, the presumptions are all in favor of the correctness of the ruling.

An affidavit filed in support of a motion for the continuance of a cause is fatally defective when it fails to state: (1) That the applicant expects to procure said testimony at the next term; or (2) that the absent witness resides in the county where the suit is pending, or, if out of the county, good cause is not shown for not is not made for delay only; or (4) that is not made for delay onlyf or (4) that the absent witness has been duly served with a subpoena, or a satisfactory reason assigned for the omission.

Where there is evidence from which all the elements of the crime of which the defendant stands convicted may be legally inferred and it does not appear that the jury were not governed by the evidence adduced at the trial, the appellate court will not disturb the verdict.

The defendant, having been convicted of murder in the second degree, stood acquitted of the crime of murder in the first degree charged against him. Thereafter he could only be put upon trial for the crime of murder in the second degree, and, this not being a capital crime, he should be tried by a jury of six men.

The evidence examined and found to be sufficient to support a verdict of guilty of murder in the second degree.

A 'capital case' is a case in which a person is tried for a capital crime.

A 'capital crime' is one for which the punishment of death is inflicted.

COUNSEL

Davant & Davant, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State.

OPINION

PARKHILL J.

This is the second appearance of this case in this court. The first report of it will be found in 46 So. 152.

The plaintiff in error was indicted, at the fall term, 1907, of the circuit court for Hernando county, for the murder of one George Green, and upon trial was convicted of murder in the second degree and sentenced to the state prison for the term of his natural life. This judgment and sentence was reversed in this court on the 24th day of March, 1908, and the defendant was convicted a second time of murder in the second degree, and again sentenced to the state prison for life. From this last sentence he seeks relief by writ of error.

The first assignment of error is based upon the refusal of the trial court to grant a motion made by defendant for a continuance of this cause because of the absence of one Joe Ruth.

In support of the motion for a continuance, the defendant filed the following affidavit: 'Now comes the defendant, January Adams, and, being by me duly sworn, on his oath says that one Joe Ruth is a necessary and material witness on his behalf, and that he cannot safely go to trial without the said witness; that, from an affidavit heretofore filed in the said case by one H. F. Price, it appears that the said Ruth was an eyewitness of the shooting in which George Green lost his life, and will testify that, at the time the said George Green was killed by said defendant, the said George Green was attempting to take the life of the said defendant with a single-barrel shotgun, which the said Green was at that time pointing at said defendant. Deponent further says that he has had subpoena issued for the said witness, and that same has been placed in the hands of the sheriff for service. Deponent further says that he cannot safely go to trial without the said witness, but that the same is necessary to his defense, and that the said witness is absent without the consent, procurement, or connivance of the said defendant, either directly or indirectly given.

'January his X mark Adams.

'Sworn to and subscribed before me this twenty-ninth day of April, A. D. 1908.

'Frank E. Saxon,

'Clerk Circuit Court. [Seal.]'

When this case was here before, it was reversed because we thought that, in view of the unsatisfactory character of the evidence upon which the verdict was rendered and of the offer of the newly discovered evidence of this same Joe Ruth, the motion for a new trial should have been granted. Now we are asked to say that the court erred in a refusal to grant a continuance of the case because of the absence of Joe Ruth.

The rule in granting continuances in civil cases has been stated by this court to be as follows: 'When a party applies in a civil suit for a continuance for the term on the ground of the absence of a witness, it must be shown by affidavit: That the witness has been duly served with a subpoena, or a satisfactory reason assigned for the omission; that he is absent without the consent of the party, directly or indirectly given; that he resides in the county where the suit is pending, or, if out of the county, good cause must be shown for not taking his deposition; that the testimony is material; that the applicant expects to procure said testimony at the next term; that the application is not made for delay only; that he cannot safely proceed to trial without the evidence of said witness. And the party must further state the facts expected to be proved by said witness.' Harrell v. Durrance, 9 Fla. 490; Gladden v. State, 12 Fla. 623.

The rule prevailing here in granting continuances in criminal cases is the same as the one that obtains in civil cases, except that in criminal cases the grounds for the motion should be scanned more closely than in civil cases, on account of the superior temptation to delay. Gladden v. State, supra; Bryant v. State, 34 Fla. 291, 16 So. 177; Bynum v. State, 46 Fla. 142, 35 So. 65; Ballard v. State, 31 Fla. 266, 12 So. 865.

An application for a continuance of a cause is addressed to the sound discretion of the court, and the action of the trial court thereon will not be reversed unless there has been a palpable abuse of that discretion to the injury of the accused. All facts necessary to show a clear abuse of discretion in this regard to the injury of the defendant must be presented, and, whenever the record is either silent or uncertain on any point material to establish such an abuse of discretion, the presumptions are all in favor of the correctness of the ruling. Gass v. State, 44 Fla. 70, 32 So. 109; Hall v. State, 35 Fla. 534, 17 So. 638; Hicks v. State, 25 Fla. 535, 6 So. 441; Ballard v. State, supra.

Considering the application for a continuance herein in the light of these principles of the law, we find it to be fatally defective, and the same was properly denied.

The affidavit filed in support of the motion for continuance fails to state 'that the applicant expects to procure said testimony at the next term.' In Easterlin v. State, 43 Fla. 565, 31 So. 350, we declined to adjudge erroneous the refusal of an application for continuance because of the absence of a witness when the affidavit filed in support thereof omitted to state 'that the applicant expects to procure said testimony at the next term.'

The affidavit filed herein is fatally defective by reason of another omission. It fails to state that the absent witness resides in the county where the suit is pending, or, if out of the county, good cause is not shown for not taking his deposition. An allegation of this kind has been held to be essential. Webster v. State, 47 Fla. 108, 36 So. 584.

The affidavit is fatally defective for the further reason that it does not show that the witness has been duly served with a subpoena, or a satisfactory reason assigned for the omission. Gladden v. State, supra.

This affidavit is fatally defective for the further reason that it does not show 'that the application is not made for delay only.' All that the affidavit shows may be true, and yet if the applicant did not expect to procure the testimony of the absent witness at the next term of the court, and if the application for continuance was made for delay only, the court very properly denied the said application. If we proceed according to the rule that 'all facts necessary to show a clear abuse of discretion in this regard to the injury of the defendant must be presented, and whenever the record is either silent or uncertain on any point material to establish such an abuse of discretion the presumptions are all in favor of the ruling,' we must presume that the application for a continuance was made for delay only, and that the applicant did not expect to procure said testimony at the next term, for the record is silent on these particulars, and it is the duty of the defendant to show by affidavit that the application is not made for delay only, and that he expects to procure said testimony at the next term.

When this case was reversed here and sent back to the court below for a new trial, it did not become the duty of...

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    ...State, 25 Ariz. 23, 212 P. 458; Campbell v. State, 128 Ark. 276, 194 S.W. 238; Kinslow v. State, 85 Ark. 514, 103 S.W. 524; Adams v. State, 56 Fla. 1, 48 So. 219.) for continuance are addressed to the discretion of the court and will not be reviewed in the absence of a showing of abuse of d......
  • State v. Ameer
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    ...murder indictment constitutes an indictment for an offense punishable by death, that is, a capital offense."); Adams v. State , 56 Fla. 1, 48 So. 219, 224 (1908) (in banc) ("A ‘capital crime’ is one for which the punishment of death is inflicted. The crime of murder in the second degree is ......
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