O'berry v. State

CourtUnited States State Supreme Court of Florida
Writing for the CourtSHACKLEFORD, J. (after stating the facts).
Citation47 Fla. 75,36 So. 440
Decision Date05 April 1904
PartiesO'BERRY v. STATE.

36 So. 440

47 Fla. 75

O'BERRY
v.
STATE.

Florida Supreme Court

April 5, 1904


In Banc. Error to Circuit Court, Brevard County; Minor S. Jones, Judge.

James F. O'Berry was convicted of larceny, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Section 11 of the Declaration of Rights of the Constitution of 1885 secures to one accused of crime the right to a speedy and public trial by an impartial jury in the county where the crime was alleged to have been committed.

2. The provision in the Constitution of 1885 in reference to the right of trial by an impartial jury in the county where the crime was committed is an important one to the accused, and such an important right must not be lightly treated.

3. Sections 2928 and 2929 of the Revised Statutes of 1892, and chapter 4394, p. 159, Laws 1895, in so far as they authorize the court to direct a change of venue when an impartial jury cannot be obtained in the county where the crime is alleged to have been committed, upon the application of either the prosecuting attorney or of the defendant, are constitutional.

4. Where an application for a change of venue in a criminal cause is made by the prosecuting attorney, and the accused objects to the granting of the same, the better practice is to put the matter to an actual test.

5. Where an application for a change of venue in a criminal cause is made by the prosecuting attorney, said application being supported by affidavits, and no actual test of the matter is had, the same should be denied, unless said affidavits fully, clearly, and positively set forth such facts as to make it appear to the satisfaction of the trial judge that it is impossible to obtain an impartial jury to try the accused in the county in which the crime was committed.

6. Section 2918 of the Revised Statutes of 1892 applies to views of personalty as well as of realty, but said statute should be strictly construed, and the view ordered thereunder should be a view pure and simple.

COUNSEL [36 So. 442]

[47 Fla. 80] Bryan & Bryan, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State. [47 Fla. 76] The plaintiff in error (hereinafter referred to as the defendant), at the fall term, 1902, of the circuit court for Osceola county, was indicted for the larceny of certain cattle. On the 9th day of April, 1903, at an adjourned term of said court, the defendant was arraigned upon said indictment, and pleaded thereto 'Not guilty.' On the 10th day of April, 1903, the state attorney for said circuit filed the following motion for a change of venue of said cause: [47 Fla. 77] 'Now comes the state of Florida, by James D. Beggs, State Attorney, for the Seventh Judicial Circuit of the state of Florida, and moves for a change of venue of the above-entitled cause, because he does not believe that it will be practicable to have a fair and impartial trial of said cause in the county of Osceola, for the reasons following, to wit: That in the county of Osceola there are only about six hundred persons qualified to serve as jurors in said county.

'Second. That at the recent primary election held in said county the defendant was a prominent candidate for the Legislature from said county; that during such primary the defendant was charged with the larceny of an animal, and such charge was discussed in the primary; that the primary was held in July, 1902, and that shortly after such primary a preliminary hearing was had in such case, and a great deal of interest was manifested in said cause, and the same was discussed generally throughout the county; that some time after the preliminary hearing mentioned the present charge was made against the defendant, but no legal proceedings were had upon the same, except that of a suit in replevin by one Needham Rowland, who claimed the cattle involved in this case; that the replevin suit was discussed, and the facts in the replevin suit are practically the same facts involved in this cause; that these facts were discussed by a great many people prior to the fall term of this court, held in this county in 1902, when the indictment was found; that at the fall term, 1902, the indictment was found in this case, and another indictment was found against the defendant for the larceny of an animal; that a large number of persons were in attendance upon [36 So. 441] the term of the court, and the cases were fully discussed by the people in attendance upon the court; that later, during the same term of the court, the other case was tried, and number of persons were summoned to attend as jurors and witnesses in both cases, and that, on account of the prominence of the defendant and the gravity of the cases, they [47 Fla. 78] were generally discussed by the public, and considerable interest and feeling manifested by the friends of both the defense and the prosecution; that after the adjournment of the court, to wit, in December, 1902, the case of replevin between Needham Rowland and Jonathan Strickland over the cattle involved in this case was tried in said county, and a great deal of interest was manifested in the same by the parties and their friends, and a large number of witnesses testified in said cause, and considerable time taken in the trial of same; that in the trial of such cause it developed that Needham Rowland claimed the cattle under a purchase from the defendant, James Frank O'Berry, and his right to the property depended upon the right of the defendant to the same; that witnesses in said cause reside in various parts of the county, and that said cause and the facts involved in this cause have been discussed generally throughout the county, and that many of the best citizens of the county are particular friends of the prosecution and defense, respectively, and feel much interest in the case, and have taken much interest in the same, and have discussed it on many occasions; and that the feelings of the people throughout the county have to a large extent become involved in said cause.

'[Signed] James D. Beggs,

'State Attorney.'

In support of said motion the state filed, in addition to the affidavit of the state attorney accompanying said motion, three other affidavits, from Jonathan Strickland, J. W. Harwell, and E. L. Lesley, all of said affidavits being substantially in the same form; the affidavit of the said Jonathan Strickland being as follows:

'State of Florida, County of Osceola. Before me personally came Jonathan Strickland, who, being duly sworn, says he is a citizen of the county of Osceola and state of Florida; that he is fully acquainted with the case of The State of Florida v. James F. O'Berry; [47 Fla. 79] that recently, in the county judge's court of Osceola county, Florida, the case of Needham Rowland v. Jonathan Strickland, in an action of replevin, was tried, and as the case involved the cattle in question, and upon which the state's case against James F. O'Berry is based, and the same witnesses are in both cases, the testimony in the state's case will be the same. In the case before the county judge the jury was composed of men from various parts of the county, and the witnesses are from nearly every section of the county. He further states that the defendant, James F. O'Berry, was recently a candidate for representative, and, on account of the prominence given him by that race, the evidence has been generally discussed, and the case talked. Affiant further states that
...

To continue reading

Request your trial
22 practice notes
  • White v. State
    • United States
    • United States State Supreme Court of Florida
    • May 21, 1910
    ...rule is the same in civil as in criminal cases; but we have cited only criminal cases. The discussion of the statute in O'Berry v. State, 47 Fla. 75, 36 So. 440, may also prove of service. No abuse of discretion having been made to appear, I think that this assignment must fail. The third t......
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...of venue over defense objection. See Higginbotham, 101 So. at 235; Ashley v. State, 72 Fla. 137, 72 So. 647, 648 (1916); O'Berry v. State, 47 Fla. 75, 36 So. 440, 443 (1904). In each case, the court reversed the defendant's conviction, holding the state had failed to establish that a fair a......
  • Haddock v. State
    • United States
    • United States State Supreme Court of Florida
    • December 19, 1939
    ...trial by an impartial jury in the county where the crime was committed. See Hewitt v. State, 43 Fla. 194, 30 So. 795; O'Berry v. State, 47 Fla. 75, 36 So. 440. It is shown by the transcript that 116 jurors were summoned for jury duty and fifty of this number were to serve as jurors in the C......
  • Gordon v. State, 34067
    • United States
    • United States State Supreme Court of Mississippi
    • June 3, 1940
    ...v. State, 179 Miss. 235, 174 So. 892; Washington v. State (Fla.), 98 So. 605; Kilgore v. State (Ala.), 95 So. 906; O'Berry v. State (Fla.), 36 So. 440; Haynes v. State (Fla.), 72 So. 180; State v. O'Day, 188 La. 169, 175 So. 838; 4 C. J. 797; Stanley v. Powers, 125 Fla. 322, 169, So. 861. T......
  • Request a trial to view additional results
22 cases
  • White v. State
    • United States
    • United States State Supreme Court of Florida
    • May 21, 1910
    ...rule is the same in civil as in criminal cases; but we have cited only criminal cases. The discussion of the statute in O'Berry v. State, 47 Fla. 75, 36 So. 440, may also prove of service. No abuse of discretion having been made to appear, I think that this assignment must fail. The third t......
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...of venue over defense objection. See Higginbotham, 101 So. at 235; Ashley v. State, 72 Fla. 137, 72 So. 647, 648 (1916); O'Berry v. State, 47 Fla. 75, 36 So. 440, 443 (1904). In each case, the court reversed the defendant's conviction, holding the state had failed to establish that a fair a......
  • Haddock v. State
    • United States
    • United States State Supreme Court of Florida
    • December 19, 1939
    ...trial by an impartial jury in the county where the crime was committed. See Hewitt v. State, 43 Fla. 194, 30 So. 795; O'Berry v. State, 47 Fla. 75, 36 So. 440. It is shown by the transcript that 116 jurors were summoned for jury duty and fifty of this number were to serve as jurors in the C......
  • Gordon v. State, 34067
    • United States
    • United States State Supreme Court of Mississippi
    • June 3, 1940
    ...v. State, 179 Miss. 235, 174 So. 892; Washington v. State (Fla.), 98 So. 605; Kilgore v. State (Ala.), 95 So. 906; O'Berry v. State (Fla.), 36 So. 440; Haynes v. State (Fla.), 72 So. 180; State v. O'Day, 188 La. 169, 175 So. 838; 4 C. J. 797; Stanley v. Powers, 125 Fla. 322, 169, So. 861. T......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT