Hagan v. State

• Decision Date: 04 November 1913
• Citation: 66 Fla. 268,63 So. 443
• Parties: HAGAN v. STATE.
• Court: Florida Supreme Court

63 So. 443

66 Fla. 268

HAGAN v. STATE.

Florida Supreme Court

November 4, 1913

Error to Circuit Court, Volusia County; J. W. Perkins, Judge.

John Hagan, alias John Hagin, was convicted of murder in the first degree, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

An application for a continuance of a cause is addressed to the sound discretion of the trial court, and all facts necessary to show an abuse of discretion to the injury of a defendant must be presented; the presumption being in favor of the correctness of the ruling.

An affidavit for a continuance of a criminal case should be scanned with more care than in a civil case, and a continuance applied for on the ground of the absence of a witness should allege that the witness was absent without the consent of the defendant either directly or indirectly given.

There is no rule of law or procedure that, where an indictment is found at one term, the trial cannot properly be had at that term. Whether a continuance should be had depends on the facts and circumstances of the case.

COUNSEL U. M. Bennett and J. E. Peacock, both of De Land, for plaintiff in error.

T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

HOCKER J.

The plaintiff in error was indicted in Volusia county on April 10, 1913, for the murder of one Claude Nix, and pleaded not guilty. On the next day his attorney filed the following motion for a continuance:

'Now comes the defendant by his attorneys, U. M. Bennett and J E. Peacock, and moves the court for a continuance of the above-entitled cause until the fall term of the said court, upon the following grounds, to wit:

'(1) Because the defendant, John Hagan, cannot safely go to trial without the following witnesses, to wit, Jessie Revels and Lizzie Revels, who will testify that at the time Claude Nix, the deceased, was shot the defendant, John Hagan, was in his bed in his house near Oak Hill, Fla., on the night of the 27th of December, 1912.

'The defendant, John Hagan, says that he cannot prove the above-stated fact by any other than the above-named witnesses, and that he has tried to have them subpoenaed, and that the sheriff has failed to get service upon them, and the defendant believes that they can be subpoenaed and present at the next term of the said court, and says that these witnesses are material witnesses in his behalf, and that he cannot safely go to trial without them, and prays the court to continue his case until the next term of the said circuit court.

'[Signed] U. M. Bennett.

'J. E. Peacock.

'Attorneys for the Defendant.'

This motion was supported by the following affidavit:

'Personally appeared before me John Hagan, who, being duly sworn, says that he is insolvent and unable to pay the cost of his defense, or of procuring the attendance of his witnesses Jessie Revels and Lizzie Revels, his wife, whom he expects to testify as to his whereabouts at the time of the alleged killing; that is, that he, John Hagan, came to his residence, where they all lived together with John Hagan and his wife, and that the said witnesses Jessie Revels and Lizzie Revels were there; that he, John Hagan, went to bed with his wife and remained there during the entire night; that the testimony of the said witnesses is necessary to the proper defense of this defendant; and that he cannot go to trial without them, and that there are no other witnesses by whom this defendant can prove this fact, except by the wife of the defendant, and, further, that he cannot procure the attendance of these witnesses without the process of subpoena.

'John his X mark Hagan

'Sworn to and subscribed before me this 10th day of Apr., A. D. 1913. Jas. W. Perkins, Judge.'

On the same day the court made the following order on said motion:

'The above motion came on to be heard, and, it appearing to the court that the testimony of these two witnesses was taken down at the inquest, and that they then swore that they were in the house of John Hagan at 6 o'clock of the evening of the alleged homicide, and that then those witnesses knew that they, the witnesses, went to bed at 6 o'clock, and that Hagan and his wife were in the house at that time, at 6 o'clock, and that they, the said Jessie Revels and Lizzie Revels, went to bed, and left Hagan and his wife yet up, and that in a few minutes they heard Hagan and his wife also go to bed; further, that the said Revels said that he went to sleep, and does not know whether or not any person left the house that night; further, upon the filing of the insolvency affidavit, and asking that these witnesses be summoned counsel stating that they understood from what one of the state's witnesses told them that these witnesses were at Anthony, Fla., the court ordered that summons do issue, and directed the sheriff to learn whether or...