Gilbert v. State
| Decision Date | 12 May 1911 |
| Citation | 55 So. 464,61 Fla. 25 |
| Parties | GILBERT et al. v. STATE |
| Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; J. Emmet Wolfe, Judge.
Wilkerson Gilbert, Percy Gilbert, and Chester Gilbert were convicted of manslaughter, and bring error. Affirmed.
Syllabus by the Court
There is no error in refusing to give instructions that have already been given in substance.
Trial judges should be careful not to make side remarks in the hearing of the jury with reference to a cause on trial.
Applications for new trial upon the ground of newly discovered evidence are looked upon by the courts with distrust and disfavor, and are granted only under the following restrictions: (1) The evidence must have been discovered since the former trial (2) the party must have used due diligence to procure it on the former trial; (3) it must be material to the issue; (4) it must go to the merits of the cause, and not merely to impeach the character of a witness; (5) it must not be merely cumulative; (6) it must be such as ought to produce on another trial an opposite result on the merits.
COUNSEL Price & Lewis, for plaintiffs in error.
Park Trammell, Atty. Gen., for the State.
The plaintiffs in error were tried in the circuit court of Jackson county upon an indictment charging them with murder in the first degree, and were convicted of manslaughter, and seek a reversal of the judgment pronounced against them by a writ of error.
During the examination of an agent of the express company, by whom the defendants were endeavoring to prove that on the day of the homicide he, as express agent, delivered to the deceased a package containing several quarts of liquor, in contradiction of the evidence for the state that during the afternoon and evening of the day of the homicide the deceased with two other men, who were with him in a buggy, had and consumed only one pint of whisky, the following question was propounded to the said express agent by the defendants' attorney: To which question objection was made by the state on the ground of immateriality. Counsel for the defense them stated that he wished to show that they got more than a pint of liquor. The court then, in ruling on the objection, said: 'He might have delivered a package to Still (the deceased); but, unless there was some further showing that they had it with them, it would not be material.' To this ruling by the court counsel for the defense then replied; 'Well, we are unfortunate in not having any but their own testimony.' To which the court replied: To this remark of the judge exception was taken, and it is assigned as error. While the making of this remark by the court in the presence of the jury was irregular, and it should not have been made yet it has not been made to appear to us to be error as will compel a reversal of the judgment below. There was nothing in the remark from which the jury could infer what views the court entertained as to the guilt or innocence of the accused. Neither was there anything in the remark that reflected on the accused or their counsel. Trial courts should be careful to abstain from making these side remarks as we have heretofore held in several cases. But, in the remarks of the judge...
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Herndon v. State
... ... State, 41 Fla. 271, text 273, 26 So ... 639; Long v. State, 42 Fla. 612, 28 So. 855; ... Mitchell v. State, 43 Fla. 584, 31 So. 242; ... Williams v. State, 53 Fla. 89, 43 So. 428; Enson ... v. State, 58 Fla. 37, 50 So. 948, 138 Am. St. Rep. 92, ... 18 Ann. Cas. 940; Gilbert v. State, 61 Fla. 25, 55 ... So. 464; Williams v. State, 68 Fla. 88, 66 So. 424; ... Florida East Coast Ry. Co. v. Knowles, 68 Fla. 400, ... 67 So. 122; Kirkland v. State, 70 Fla. 584, 70 So ... 592; Ryals v. State, 72 Fla. ----, 72 So. 369. In ... these cases will be found a ... ...
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Bullard v. State
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