Grantham v. State

• Decision Date: 07 July 1939
• Citation: 139 Fla. 129,190 So. 495
• Parties: GRANTHAM v. STATE.
• Court: Florida Supreme Court

190 So. 495

139 Fla. 129

GRANTHAM v. STATE.

Florida Supreme Court, Division A.

July 7, 1939

Rehearing Denied July 27, 1939.

Error to Circuit Court, Taylor County; R. H. Rpwe, Judge.

Olin Grantham was convicted of assault with intent to commit manslaughter, and he brings error.

Affirmed.

COUNSEL Ben Lindsey, Jr., of Perry, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for defendant in error.

OPINION

THOMAS Justice.

Plaintiff in error was indicted for the offense of assault with intent to commit murder in the first degree and convicted of assault with intent to commit manslaughter. He insists that the judgment should be reversed because of the erroneous decisions of the trial court in denying his motion for a continuance, admitting certain evidence, which we will discuss, and refusing to set aside a verdict of guilty of the lesser crime in the absence of proof of intent to kill and use of a dangerous weapon.

The arraignment occurred September 28th and plea of not guilty was then entered. Three days later the plaintiff in error moved the court for permission to withdraw the plea and present a motion to quash. Though the record is silent as to a ruling on this application, it was apparently granted as an order was rendered denying the motion to quash. It was next sought to obtain a continuance because of the length of time elapsing between the finding of the indictment (September 22d) and 'calling the case for trial,' October 1st. According to the motion, defendant's attorney was engaged in the trial of a murder case September 30th and because of this task was precluded from interviewing witnesses essential to the defense and from summoning them.

We have said as recently as January 20, 1939, that the element of time is but a circumstance in reviewing the court's action in denying a motion for continuance to afford an opportunity for preparation of a defense and that to avail the plaintiff in error anything the abuse of discretion of the presiding judge must be clearly shown. Wadsworth v State, Fla., 186 So. 435.

In the present case the trial was held nine days after the indictment was returned and three days after the defendant pleaded. The court was not given the benefit of any particulars about the witnesses defendant wished to examine. The motion was silent with reference to their availability or the importance of their testimony. The time required for having a subpoena issued is, of course, negligible.

From the representation made in the application, the court doubtless felt there was a dearth of information showing that delay was indispensable to a proper defense and reading it in the light in which it was probably considered by him we feel we would have ruled likewise, hence it necessarily follows that evidence of clear...