Clements v. State

• Decision Date: 20 February 1906
• Citation: 40 So. 432,51 Fla. 6
• Parties: CLEMENTS v. STATE.
• Court: Florida Supreme Court

40 So. 432

51 Fla. 6

CLEMENTS v. STATE.

Florida Supreme Court, Division A.

February 20, 1906

Rehearing Denied March 20, 1906.

Error to Criminal Court of Record, Duval County; S. T. Shaylor Judge.

W. T Clements was convicted of assault with intent to murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In a criminal case brought to an appellate court by writ of error where none of the evidence is incorporated in the bill of exceptions and none of the charges given by the court are incorporated either in the regular or in a statutory bill of exceptions, neither the evidence nor the charges given by the trial court are before the appellate court for consideration and, in their absence, an appellate court must assume that the evidence was sufficient to warrant a conviction, and that the charges given corectly set forth the law applicable to the case; every presumption being in favor of the correctness of the verdict and judgment rendered and entered in the trial court.

In criminal, as well as in civil, cases an application for a continuance is addressed to the sound judicial discretion of the trial court, and the denial of such a motion will not be reversed by an appellate court, unless there has been a palpable abuse of this judicial discretion, which must be clearly and affirmatively made to appear in the bill of exceptions; the rule being that motions for a continuance in criminal cases are to be even more closely scanned than in civil cases, because of the greater temptation to delay.

Evidence of the insanity of a defendant's ancestors and relatives is not alone competent or sufficient to prove that the defendant is insane, and such evidence can only be used to corroborate other evidence of his insanity. It is not error for the trial court to refuse a continuance in a criminal case in order that defendant may have an opportunity of taking testimony on commission to establish such fact; there being no offer on the part of the defendant to connect such testimony with other testimony to establish the insanity of the defendant at the time of the commission of the offense with which defendant stood charged, and the materiality of the proposed testimony in no wise being made to appear to the court.

Under section 2912 of the Revised Statutes of 1892 the application for a commission to take the testimony of absent witnesses should generally be made to the court by the defendant when he is arraigned, and upon a proper compliance with all the requirements of said statute the court has no authority to refuse such commission, but a defendant cannot await his pleasure after his arraignment before making his application for the commission.

Section 2913 of the Revised Statutes of 1892 provides that the order for issuing a commission to take the testimony of absent witnesses may be made by the judge, either in term time or in vacation, upon the application of a defendant in a criminal action.

'Duly arraigned' in open court means arraigned according to law.

COUNSEL

Walter M. Davis, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State.

OPINION

SHACKLEFORD C.J.

W. T. Clements, the plaintiff in error, was convicted of the crime of an assault with intent to murder in the criminal court of record for Duval county, and sentenced to confinement in the state prison at hard labor for the period of 20 years. From this judgment and sentence he seeks relief here by writ of error, returnable to the present term of this court.

Seven errors are assigned, which are as follows:

'(1) The court erred in permitting and directing the information to be filed and the defendant arraigned and ordered to plead on the 17th day of October, 1905, after the regular August, 1905, trial term of said court had adjourned on the 11th of October, A. D. 1905, and before the regular October, 1905, trial term had begun on October 24, 1905.

'(2) The court erred in refusing the application of defendant for a commission to take the depositions of absent witnesses as therein designated.

'(3) The court erred in refusing the application of the defendant for a continuance of said case.

'(4) The court erred in directing that said cause proceed to trial over the objection and protest of defendant on October 28, 1905.

'(5) The court erred in denying and overruling defendant's motion in arrest of judgment.

'(6) The court erred in denying and overruling defendant's motion for a new trial.

'(7) The court erred in passing sentence and entering judgment against defendant as indicated by the record.'

The only assignments argued here are those based upon the action of the trial court in refusing to grant the application of the defendant for a continuance of the case, and may conveniently be treated together.

The record discloses the following facts: The information, which is in the usual form, was filed on the 17th day of October, 1905, and on the same day the defendant was duly arraigned in open court and entered a plea of not guilty.

On the 28th day of October, 1905, 'at and during a term of the court aforesaid, the said cause was reached upon the calendar of said court and called in its order, and the said respective parties being present and represented by counsel, and the plaintiff having announced ready for trial,' thereupon the defendant filed the following application for a continuance and for a commission to take depositions:

'Before me in person comes W. T. Clemmons, who, being first duly sworn, on oath says that he is the defendant in the above-entitled cause; that he has been informed against at the present term of court, charged with an assault to commit murder; that Mrs. Mary Daniel and Mrs. Fanny Clemmons are material witnesses in his behalf; that he expects to prove by said witnesses that Louella Norris was his great-aunt, and that she died some years ago in the insane asylum at Milledgeville, Georgia, and that she was subject to fits of insanity before her death; that Mrs. Mary Yarborough, John Cheek, and Mrs. Angy Downs are material witnesses in his behalf, and by them he expects to prove that J. F. Yarborough was his grandfather, and that during the last twelve years of his life he was subject to insane spells and was at times very violent in his insane conduct; that L. F. Cheely and J. H. Davis are material witnesses in his behalf, and by them he expects to prove that A. Clemmons was his grandfather on his father's side, and that he was at time insane and subject to fits of temporary and at time violent insanity; that J. H. Davis, J. W. Harrison, and J. B. Harrison are material witnesses in his behalf, and by him expects to prove that they have known affiant for many years and that he is and has always been a quiet, law-abiding man, of good moral habits and character. And defendant further expects to prove by most, if not all, of said witnesses that his grandfather was totally insane; that two childen of said grandfather died with fits at tender age; that two great-aunts were lunatics; that a great-uncle was a lunatic; that a great-aunt is now a lunatic; that his mother frequently loses her mental balance and frequently collapses, physically and mentally; that affiant's kindred on his mother's side are subject to acute heart trouble; that affiant's mother had an aunt who died in the lunatic asylum; that his great-grandfather and great-grandmother died lunatics; that his great-grandfather on his father's side was subject to mental spells, and frequently became very violent; that all said witnesses are out of this county and beyond the jurisdiction of this court; that he cannot with diligence procure the attendance of said witnesses at this term or the next succeeding term of this court; that there are on other witnesses by whom he can prove said facts; that said witnesses are all residents of Glasscock county, state of Georgia; that since the filing of the information he has not had sufficient time, nor will he have sufficient time at this term of court, to take the depositions of said witnesses; that said witnesses are absent without affiant's consent or procurement, directly or indirectly given; that he cannot safely go to trial without the testimony of said witnesses; that this application is not made for delay only; that affiant expects to procure the evidence of said witnesses by deposition at the next term of this court, and, further, that one T. A. Brown of Agricola, Glasscock county, Georgia, is a competent disinterested person to take the deposition of said witnesses, and affiant asks a continuance of this case and for an order of court directing that a commission issue, naming therein said T. A. Brown, to take the depositions of said witnesses according to the interrogatories filed herewith and to return same to this court to be used as evidence in his behalf.

'[Signed] W. T. Clemmons.

'Sworn to and subscribed before me this 26th day of October, A. D. 1905.

'[Signed] S. L. Earle,

'Clerk Criminal Court Record Duval County,

Florida. [Seal.]'

Accompanying this paper was a number of direct interrogatories, to be propounded to the witnesses named in the foregoing application.

Upon the same day the court denied the application and motion of the defendant, to which ruling an exception was duly taken and noted. In making his ruling upon said application and motion the judge of the trial court gave as his reason in part as follows: 'That the movant had failed to comply with the statute regarding depositions and the issuance of commissions therefor, to wit, the Revised Statutes of Fla 1892, § 2912, in that the motion for said commission was not made on the day of arraignment upon the information subjecting the said movant to laches and that said movant had been otherwise...