Browning v. State

• Decision Date: 25 April 1899
• Citation: 41 Fla. 271,26 So. 639
• Parties: BROWNING v. STATE.
• Court: Florida Supreme Court

26 So. 639

41 Fla. 271

BROWNING v. STATE.

Florida Supreme Court

April 25, 1899

Error to circuit court, De Soto county; Barron Phillips, Judge.

John Browning was convicted of larceny, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. An appellate court will not set aside a verdict as being against the evidence where there is any evidence to support it unless it may well be assumed that the jury were improperly influenced by considerations outside of the evidence; and a verdict will not ordinarily be set aside by such court where its propriety depends entirely upon the credibility of conflicting witnesses.

2. Evidence used or presented in support of a motion for new trial must be exhibited to an appellate court in and by a bill of exceptions, otherwise such court cannot consider it.

COUNSEL Isaac H. Trabue (C. C. Morgan, on the brief) for plaintiff in error.

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

OPINION

TAYLOR C.J.

At the spring term, 1898, of the circuit court for De Soto county the plaintiff in error was convicted of the crime of larceny of a hog, and sentenced to imprisonment in the penitentiary for one year, and for reversal of such sentence applies here by writ of error.

Two errors are assigned, that really amount to but one, viz That the court erred in denying the defendant's motion for new trial--First, because the verdict was not founded upon the weight of evidence, and because the evidence is insufficient to support the verdict; second, because the motion for new trial should have been granted because of newly-discovered evidence.

It has been repeatedly held by this court that where there is any evidence to support the verdict it will not be set aside by the appellate court as against the evidence, unless it may well be assumed that the jury were improperly influenced by considerations outside of the evidence; and that a verdict will not be set aside by such court where its propriety depends entirely upon the credibility of conflicting witnesses. Railroad Co. v. Macon, 8 Fla. 299; Gaines v. Forcheimer, 9 Fla. 265; Wilson v. Dibble, 14 Fla. 47; Schultz v. Insurance Co., Id. 73; Shaw v. Newman, Id. 128; Moses v. Gilchrist, Id. 325; Nickels v. Mooring, 16 Fla. 76; Coker v. Merritt's Ex'r, Id. 416; Forcheimer v. Mayo, Id. 676; Sherman v. State, 17 Fla. 888; McMurray v. Basnett, 18 Fla. 609; Huling v. Bank, 19 Fla. 695; Netso v. Foss, 21 Fla. 145.

We think that the evidence for the state in this case was ample to sustain the verdict found. The testimony for the defendant conflicted with it in some respects; but the jury, who are the exclusive arbiters of the credibility of witnesses, have given their decision on the side of the witnesses for the state, and under the long and well settled rule above announced we cannot disturb their solution of it, there being nothing in the record indicative of their verdict having been induced by improper influences outside of the evidence before them.

Upon the second contention--that the motion for new trial should have been granted on the ground of newly-discovered evidence--the court below was not in error, and this for several reasons. So far as anything in the record before us is properly shown so that we are authorized to consider it, there was nothing before the trial court upon which to base the claim of newly-discovered evidence except the bare statement of such ground in the motion for new trial itself. In Sherman v. State, 17 Fla. 888, it was correctly held that an application to set aside a verdict and grant a new trial on the ground of newly-discovered testimony must be accompanied with some evidence that such testimony actually exists. Copied into the transcript of the record is an affidavit of a party purporting to detail the alleged newly-discovered evidence, but the bill of exceptions does...