Bynum v. State
| Decision Date | 28 July 1903 |
| Citation | 35 So. 65,46 Fla. 142 |
| Parties | BYNUM v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Columbia County; Lucius J. Reeves, Judge.
Robert Bynum was convicted of crime, and brings error. Affirmed.
Syllabus by the Court
1. Motions for continuance in criminal cases because of the absence of an alleged material witness are to be closely scanned, and, where the affidavit in support of such a motion fails to show proper diligence in attempting to procure the presence of the witness, and does not allege the witness to be absent without the consent of the accused, the action of the trial court in denying such motion will not be reversed.
2. The father of one whose age is a material fact in a criminal prosecution, who knows her age independently of any record thereof, may be permitted to testify to her age, even though he had written the date in the family Bible, which is not produced in evidence.
3. Objections to charges, not taken at the time the charges were given, nor embraced in the motion for a new trial, will not be considered.
4. In the absence of a request for a proper instruction defining the phrase 'reasonable doubt,' the failure of the court to define these words is not error.
5. Evidence examined, and found sufficient to support the verdict.
COUNSEL M. M. Scarborough, Jr., for plaintiff in error.
J. B Whitfield, Atty. Gen., for the State.
The plaintiff in error was convicted of having carnal intercourse with an unmarried female under the age of 16. The offense was alleged to have been committed on the 28th day of April 1901.
The first assignment of error is based upon the overruling of the defendant's motion for a continuance. In support of the motion the defendant filed an affidavit alleging the absence of a material witness, by whom he expected to prove that the prosecuting witness had made contradictory statements. This affidavit does not come up to the rule heretofore laid down by this court in several particulars. There is no proper showing of due diligence in attempting to procure the presence of the witness, nor does it appear that the witness is absent without the consent of the defendant. Motions for continuance in criminal cases are to be closely scanned, and all facts necessary to show a clear abuse of the discretion reposed in the trial courts in such matters must be presented; and, wherever the record is either silent or uncertain on any point material to establish such an abuse the presumptions are all in favor of the correctness of the ruling that denies the motion. Ballard v. State, 31 Fla. 266, text, 282, 12 So. 865; Shiver v. State, 41 Fla. 630, 27 So. 36.
There was no error committed in permitting the father of the prosecuting witness to testify as to her age, over the objection that the family Bible is the best...
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