Bryant v. State
| Decision Date | 28 September 1894 |
| Citation | 16 So. 177,34 Fla. 291 |
| Court | Florida Supreme Court |
| Parties | BRYANT v. STATE. |
Error to circuit court, Marion county; W. A. Hocker, Judge.
Dan Bryant was convicted of murder in the first degree, and he brings error. Affirmed.
Syllabus by the Court
1. An affidavit by defendant for a continuance in a criminal case on account of the absence of witnesses for the defendant should allege that the witnesses were absent without the consent of the defendant, either directly or indirectly given.
2. An affidavit of the character mentioned in the preceding headnote, on account of the greater temptation to delay should be more closely scrutinized in a criminal than in a civil case.
3. In applications for continuances, much must be left to the discretion of the court to which they are addressed. A writ of error will not be sustained on account of a refusal to grant a continuance unless it is a plain and palpable instance of the arbitrary and oppressive exercise of the power vested by law.
4. This court cannot consider an assignment of error unless the action of the court below alleged as error affirmatively appears of record.
5. It is not error to refuse to give the jury an instruction requested by the defendant when the court has already given the same matter in his general charge to the jury, and instructed them fully and correctly upon the same subject-matter.
6. It is not error to refuse a request by the defendant to instruct the jury 'that reasonable doubt need not arise from the whole evidence but may arise from a part or parcel thereof.' A reasonable doubt cannot arise from considering 'a part or parcel' of the testimony. The reasonable doubt which the law requires shall acquit a defendant is one that arises in the minds of the jury after considering, comparing, and weighing all the testimony in the case.
7. This court cannot find any error in the refusal of the circuit court to give to the jury an instruction requested by the defendant where such instruction is based upon an alleged admission of the state attorney, and the record does not show that any such admission was made, and such admission only appears as recited in the instruction requested and refused.
8. Until a verdict is received and recorded by the court, it is still within the control of the jury, and they may, if they see fit, alter or amend it, either with or without the suggestion of the court.
9. A verdict in a criminal case should be certain, positive, and free from all ambiguity and obscurity; and, until it is received and recorded, the court may suggest to the jury an amendment in the form of their verdict. A verdict thus amended, assented to by the jury, and received and recorded becomes their verdict in the case.
10. It may be a sufficient verdict in a murder case to say, 'We, the jury, find the prisoner guilty of murder in the first degree;' but it is more safe and certain to use the word 'defendant,' instead of 'prisoner,' and to state the name of the defendant in the verdict. A direction by the court to the jury, who returned a verdict in the form above given, to the effect, if they intended to find the prisoner guilty of murder in the first degree, to name the prisoner in their verdict, is not error.
COUNSEL J. H. Curry, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error was indicted in the circuit court of Marion county for the murder of Moses Williams. At a trial had at the spring term, 1894, he was convicted of murder in the first degree, and sentenced to death. He assigns the following errors as having been committed by the court below (1) Refusing motion for a continuance; (2) that proper oath was not administered to jurors; (3) refusal of court to give charges asked for by defendant; (4) in ordering the jury to retire and consider a second verdict. We consider these assignments in their numerical order. The first was upon the refusal of the court to grant a continuance. This motion was upon the ground of the absence of witnesses. The affidavit of the defendant stated that defendant is charged with murder in the first degree; that the indictment upon which he is to be tried was found at the last term of this court; that he had no knowledge of said indictment until a few weeks ago, when he was arrested; that since that time he has been confined in the common jail of this county; that on last Saturday he was arraigned, and a subpoena was issued for his witnesses; that Grace Brookes, of High Springs, Fla., and Tom Crawford, of Early Bird, Fla., are material witnesses for his defense, and he cannot safely go on trial without said witnesses; that he has exercised due diligence to obtain the attendance of said witnesses; that said witnesses have left the places of their last residence, and affiant cannot at present produce them in court, but believes that he can have them by the next term of this court; that he expects to and can prove by said witnesses that he was one-fourth of a mile from the place of the homicide which he is charged with committing at the time it occurred; that this affidavit is not made for delay, but in good faith. Examination of this affidavit shows that it fails in several particulars to comply with the rule well established in this court in such cases. It should have alleged that the absent witnesses were absent without the consent of the defendant, directly or indirectly given. All the allegations of fact of the affidavit may be true, and yet it may also be true that the defendant procured the absence of the witnesses named for the purpose of obtaining a continuance. It is even made probable by the record that the defendant was not willing to make the necessary allegations that the witnesses were absent without his procurement, knowledge, or consent. The court, in overruling the continuance, made an order as follows: 'As it does not appear from the foregoing affidavit that the absent witnesses are not absent by the consent or procurement of defendant Bryant, nor that he cannot prove the same facts by other witnesses, and that Will Keys, one of the witnesses summoned by him, and present, will not testify to the same facts as the absent witnesses, and it appearing from the statement of the sheriff that the absent witnesses are nomadic in their habits, traveling from one phosphate camp to another, the application for continuance, on the grounds of their absence, is refused.' This order of the court in plain terms informed the defendant of the defects in his affidavit; yet he made no effort to amend it after being advised of the defects therein. The only reasonable conclusion is that the facts did not warrant him so to do, and that he did not desire to comply with the requirements of the law. That the affidavit offered was fatally defective is made apparent by reference to the case of Harrell v. Durrance, 9 Fla. 490. An affidavit of this character, on account of the greater temptation to delay, should be more closely scrutinized in a criminal than in a civil case. Gladden v. State, 12 Fla. 562. The affidavit states that a subpoena had been issued for the witnesses named, but contains no statement of the inability of the sheriff to find them. The record shows no return of the sheriff upon the subpoena, or, indeed, that any subpoena was issued at all. In applications for a continuance, much must be left to the discretion of the court to which they are addressed. Circumstances occurring before the court often indicate whether such motions are made in good faith, and a writ of error will not be sustained on account of a refusal to grant a continuance unless it is a plain and palpable instance of the arbitrary and oppressive exercise of the power vested by law. Gladden v. State, 12 Fla. 562; Blige v. State, 20 Fla. 742; Ballard v. State, 31 Fla. 266, 12 So. 865. We do not think that the ruling complained of was any abuse of the discretionary power of the court.
The second assignment of error alleges that the proper oath was not administered to the jury. The record shows that the jury were duly elected and accepted upon the panel, and were thereupon duly sworn. Counsel for plaintiff in error, in his brief, claims that an irregular oath was administered to the jurors upon their voir dire. But we cannot consider a matter not appearing at all in the record, and shown only by counsel in his brief.
The third assignment is that the court erred in not giving the charges to the jury that were requested by the defendant. The record shows that the defendant requested three charges which were refused by the court. The first charge requested was as follows: 'Before you find the defendant guilty, you...
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