Brown v. State

• Decision Date: 18 November 1938
• Parties: BROWN v. STATE.
• Court: Florida Supreme Court

184 So. 777

135 Fla. 90

BROWN v. STATE.

Florida Supreme Court, Division B.

November 18, 1938

Rehearing Denied Dec. 16, 1938.

Error to Criminal Court of Record, Duval County; Wm. J. Porter Judge.

Jack C Brown was convicted of larceny, and he brings error.

Affirmed.

COUNSEL

John L. Nixon, of Jacksonville, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for the State.

OPINION

CHAPMAN Justice.

On May 7. 1937, Jack C. Brown, plaintiff in error, hereinafter referred to as the defendant, was informed against by the County Solicitor of the Criminal Court of Record of Duval County, for the larceny of fifteen suits of clothes, seventy-five ties, forty-eight pairs of socks, six pairs of shoes, and one ladies suit, property of Donaldson, Inc., a corporation, and of the total value of $430.40. The information recites that the property was stolen on the 27th day of February, 1937, in Duval County, Florida. The defendant on August 7, 1937, to the said information filed a plea of autrefois acquit and a motion to strike the plea was sustained by the trial court. On October 13, 1937, a second plea of autrefois acquit was filed by the defendant. The authority for filing the second plea does not appear in the record in the form of a court order, but the trial court, under date of October 13, 1937, overruled and denied the second plea of autrefois acquit. The defendant was put upon trial before a jury and a verdict of guilty rendered, a motion for a new trial overruled and denied, when the trial court sentenced the defendant to the State Penitentiary for a period of three years at hard labor. From the judgment and conviction writ of error was sued out, the record perfected and a reversal is sought in this Court on a number of assignments of error.

When the case was called for trial on October 13, 1937, defendant, through counsel, presented to the court a motion for a continuance of the trial upon the ground of the absence of a material witness by the name of Bob Mallard, who had a knowledge of the whereabouts of the defendant on the night of February 27, 1937, when the personal property was alleged to have been taken, and that the said Bob Mallard would testify, if present, that he was with Jack C. Brown continuously between 11:00 o'clock P. M., on February 27th, to 7:00 o'clock A. M., February 28, 1937, and that the said Jack C. Brown did not unlawfully take the property described in the information. The motion for a continuance is not supported by testimony other than that of the defendant. There is no corroborating testimony in support of the motion for continuance to the effect that Bob Mallard, the absent witness, was in Duval County on the night of February 27, 1937; or of the materiality or admissibility of the alleged testimony appearing in the motion that would be given by the absent witness, and it was not made affirmatively to appear that diligence in procuring the attendance of the absent witness upon the trial of the case was impressed upon the trial court. The sole question presented for decision upon the motion for a continuance is: Did the lower court abuse its discretion in overruling and denying a continuance of the cause because of the absence of the material witness?

This Court has, from time to time, held that trial courts have a broad discretion in granting or denying applications for a continuance in criminal cases. It has been uniformly held that an application for continuance must be left with the trial court, who has the parties before it, and who must determine from a variety of circumstances occurring in its presence whether such application is made in good faith, and whether or not diligence has been exercised, the materiality of the testimony and whether or not the testimony of the absent witness can be given by other witnesses. The law requires that continuances in criminal cases should be scanned more closely than in civil cases, because of the advantages given to a defendant in a criminal case which flow from the continuance of a cause. The exercise by the trial court of its discretion in the matter of granting or denying applications for continuances will not be interfered with by an appellate court unless it is clearly shown that there has been a palpable abuse of such discretion to the injury of the party against whom it was exercised. See Ward v. State, 83 Fla. 311, 91 So. 189; Yarborough v. State, 94 Fla. 143, 114 So. 237; Jacques v. State, 86 Fla. 137, 97 So. 380; Hall v. State, 70 Fla. 48, 69 So. 692; Maddox v. State, 69 Fla. 695, 69 So. 20; Webster v. State, 47 Fla. 108, 36 So. 584; Denham v. State, 22 Fla. 664; Clinton v. State, 53 Fla. 98, 43 So. 312, 12 Ann.Cas. 150; Jerry v. State, 99 Fla. 1330, 128 So. 807.

It is next contended that reversible error occurred by permitting or allowing the juror H. C. Smith to sit upon the trial of the case when it was shown that he was a special police officer of the City of Jacksonville. When the juror was examined on his voir dire examination he neglected or omitted to advise counsel engaged in the case that he was a special police officer of the City of Jacksonville and some progress had been made in the trial of the cause when he disclosed the information, and this question is assigned as error. Counsel for defendant cites a number of authorities to sustain his position to the effect that a new trial should be granted because of the juror H. C. Smith. The law disqualifying persons to act as jurors because of holding official positions does not include special police officers of the City of Jacksonville of which H. C. Smith was a member. See subdivision 2 of section 4451, C.G.L. The statement of the juror as to his qualification is, viz.:

'Juror Smith: The question was asked me if I were a member of any law-enforcement body. I am not sworn in for regular duty, but I am a special officer for the City of Jacksonville.

'The Court: Might say that the juror just mentioned that to me. What he asked me was, what would constitute him being a member of some law-enforcement body. I suggested that he ask the question out loud, so that if counsel wished to question him they may do so.'

It is clear that the juror was not on the pay roll of the City of Jacksonville, was not giving his time to law enforcement duties, and never had taken an oath or been assigned to any regular duty as a special police officer. We have considered the many cases cited by counsel for defendant in support of his contention that the lower court erred in refusing to grant the motion for a mistrial. While we can agree with the legal principles involved in the cases cited, we are forced to disagree with the conclusion of counsel for defendant that error was committed in denying the motion for a mistrial.

It is next contended that reversible error was committed in the trial of the case when some of the alleged stolen articles were offered in evidence during the progress of the trial as it was contended by the prosecution that State's witnesses Leroy Pierce and Charlie Marks stole the property offered in evidence. We fail to see or observe error on the part of the trial court in admitting into evidence some of the articles recovered which were alleged to have been stolen by the above named State's witnesses.

We have observed the contention of counsel for the defendant about improper remarks of the State Attorney, the article appearing in the newspapers about shoes, etc., and the record has been fully considered in connection with this assignment.

Questions numbered 9, 10, 11, 12, and 13 have been studied and considered in the light of the record, and authorities in support thereof have been considered, but when the case is considered in its entirety, rather than selected portions thereof presented and argued, we do not think that error occurred in the lower court by this adverse ruling.

It is next contended that the verdict and judgment should be set aside because the jury failed to specify in its verdict the value of the goods stolen. The case of Wilson v. State, 129 Fla. 891, 176 So. 845, is relied upon to sustain that conclusion. In the Wilson Case, supra, the defendant had been tried on an indictment charging murder in the first degree and the verdict failed to specify the degree of murder, as required by the statute, of which the defendant was guilty, and for this reason the verdict was a nullity. The verdict in the case at bar is, viz.: 'We the jury, find the defendant guilty as charged in the information, and recommend the mercy of the Court. So say we all.' The information charged the defendant with the larceny of different articles of wearing apparel which was the property of Donaldson, Inc., all of the value of $430.40. We think the verdict follows the information when it alleges that he was guilty 'as charged in the information.' There is no merit to this assignment.

The testimony of Leroy Pierce and Charlie Marks, accomplices of the defendant, was offered by the prosecution. These witnesses were closely examined by counsel for defendant. The trial court charged the jury as to the law on admitting testimony of accomplices. The testimony of the two State witnesses, or accomplices, was attempted to be impeached by counsel for the defendant by a number of reliable witnesses but the jury had a right to believe or disbelieve these witnesses and elected to believe the testimony and rendered a verdict of guilty. It is true that the testimony was...