Garner v. State
| Decision Date | 16 March 1893 |
| Citation | 31 Fla. 170,12 So. 638 |
| Parties | GARNER v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Suwannee county; John F. White, Judge.
Indictment against I. T. Garner for murder in the first degree. From a judgment on conviction, defendant brings error. Affirmed.
For decision on former appeal, see 9 South. Rep. 835.
Syllabus by the Court
1. The recitals in a motion for a new trial do not of themselves afford evidence of their correctness, and, in the absence of anything to the contrary, the presumption is that the action of the court in overruling a motion was predicated upon the ground that there was no evidence to sustain it.
2. An exception to the ruling of the court, in either admitting or rejecting testimony, comes too late when made for the first time in a motion for a new trial.
3. In the case at bar testimony was introduced on the part of the defense tending to show an overt act or demonstration on the part of the deceased at the time of the killing, calculated to excite a reasonable apprehension on the part of the accused that he was in imminent danger of losing his life, or suffering great bodily harm at the hands of the deceased also some testimony was given to the jury tending to show that a short time before the killing the deceased had threatened to shoot the accused, and that these threats had been communicated to him. In addition to the foregoing testimony, the accused sought to prove by a witness that he knew of his own knowledge that the deceased was in the habit of carrying arms secretly, but no offer was made to show that the witness had ever imparted his knowledge to the accused. Held, that the refusal of the trial court to permit this evidence to be given to the jury was not error.
4. The testimony in this case held sufficient to sustain the verdict.
COUNSEL J. C. Gallaher, for plaintiff in error.
W. B. Lamar, Atty. Gen., for the State.
This case is now before us a second time. The plaintiff in error was convicted in February, 1891, of the murder of J. T Lasley, and the judgment of the court then passed upon him was, upon writ of error to this court, at the June term 1891, reversed, and a new trial awarded. Garner v State, 28 Fla. 113, 9 South. Rep. 835. A second trial has resulted in a conviction of murder in the first degree, with recommendation of mercy to the court, and from the judgment rendered on this conviction a writ of error has been sued out.
The only matters assigned for error on the record now before us are those included in a motion for a new trial, which the circuit court overruled. The grounds of this motion are:
The record shows that W. H. Hodder was selected and sworn as one of the jurors in the cause, but we have no information that he had changed his residence after being registered, and in fact all the information imparted to us by the record in reference to this matter is that contained in the motion for a new trial. It is only necessary to say that the mere recitals in the motion for a new trial do not afford evidence that they are true. This court has in many cases announced this self-evident proposition, and declined to consider assignments of error based upon grounds in motions without any evidence in the record to test the correctness of the court's ruling thereon. In the absence of anything to the contrary, the presumption is that the court overruled the motion because there was no evidence to sustain it. Parrish v. Railroad Co., 28 Fla. 251, 9 South. Rep. 696; Richardson v. State, 28 Fla. 349, 9 South. Rep. 704; Pinson v. State, 28 Fla. 735, 9 South. Rep. 706.
We have carefully examined the evidence contained in the bill of exceptions, and can find no exception taken at the time by the defendant to any ruling of the court in rejecting or admitting any testimony that can in any way present the question sought to be raised by the second assignment of error. It is true that the ground of this assignment of error was presented in a motion for a new trial...
To continue reading
Request your trial
-
Keigans v. State
... ... convict the defendant of murder in the first degree, the jury ... must be satisfied from the evidence beyond a reasonable doubt ... that the defendant not only had an intention to kill the ... deceased, but that he actually had a premeditated design to ... kill him.' See, also, Garner v. State, 28 Fla ... 113, 9 So. 836, 29 Am. St. Rep. 232; [52 Fla. 64] Olds v ... State, 44 Fla. 452, 33 So. 296. Or, as it was expressed ... by this court in Lovett v. State, 30 Fla. 142, 11 ... So. 550, 17 L. R. A. 705: 'There must have been, previous ... to the act of killing, ... ...
-
Meldrum v. State
...Ala. 369 and cases there cited; Steele v. State, 14 So. 841 (Fla.); Bond v. State, 21 Fla. 738; Garner v. State, 28 Fla. 113, 9 So. 835, 12 So. 638; Wilson v. State, 30 Fla. 234, 11 So. 556.) Defendant being the aggressor, an uncommunicated threat by Bowen was not admissible in evidence as ......
-
Reynolds v. State
... ... contrary to the law and the evidence. As against a motion for ... a new trial upon the ground last stated and in the absence of ... a timely objection, as for incompleteness, we deem the proof ... of the prior conviction sufficient. Garner v. State, ... 31 Fla. 170, 12 So. 638. See Gould v. State, 66 Tex ... Cr. R. 122, 146 S.W. 172; ... [111 So. 288] ... Muckenfuss v. State, 55 Tex. Cr. R. 216, 117 S.W ... 854; 16 C.J. p. 1339 et seq ... Other ... assignments of error have been carefully examined, but no ... ...
-
Freeman v. State
... ... evidenced to this court, and they cannot be considered here, ... especially when the [50 Fla. 43] motion is denied, since the ... statements in a motion for new trial are not self-supporting ... Gray v. State, 42 Fla. 174, 28 So. 53; Kennard ... v. State, 42 Fla. 581, 28 So. 858; Garner v ... State, 31 Fla. 170, 12 So. 638; Lambright v ... State, 34 Fla. 564, 16 So. 582; White v. State, ... 26 Fla. 602, 7 So. 857; Marsh v. Bennett, 49 Fla ... ----, 38 So. 237 ... It is ... assigned as error that 'the court in rendering judgment ... against the defendant upon ... ...