Howard v. State
| Decision Date | 26 July 1895 |
| Citation | 36 Fla. 21,17 So. 84 |
| Parties | HOWARD v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Leon county; John F. White, Judge.
John Howard was convicted of assault with intent to murder, and brings error. Affirmed.
Syllabus by the Court
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. The party applying must make his vigilance apparent, for if it is left even doubtful that he knew of the evidence, or that be might but for negligence, have known of and produced it, he will not succeed in his application.
COUNSEL Stephen C. Miller, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error was indicted, tried, and convicted, at the spring term, 1895, of the circuit court for Leon county, of the crime of assault with intent to murder, and sentenced to imprisonment in the penitentiary for five years, and brings his case here on writ of error.
The refusal of the court to grant the defendant's motion for new trial is the only error assigned. The grounds of the motion for new trial were that the verdict was contrary to law and the evidence, and because of newly-discovered evidence as presented in the defendant's affidavit corroborated by the affidavit of the newly-discovered witness as to the facts he would testify to. The first ground of the motion for new trial, to the effect that the verdict was contrary to law and to the evidence, is without merit. Without detailing it, it is sufficient for us to say that the evidence in the cause, if believed by the jury, was amply supportive of the verdict found, both in fact and in law.
Touching the second ground of the motion for new trial, that of newly-discovered evidence, it was shown on behalf of the state that the defendant made an assault upon one W. I. Vason with a gun, with which he fired at Vason while Vason was in the act of freeing one of his cows from the entanglement of a rope with which she was secured in the defendant's field the defendant's mother having the cow there, by Vason's consent, as a pledge to secure the payment by Vason of damages done to her crops by his cattle. Vason testified that the defendant fired at him with his shotgun first, and without other provocation than that of seeking to disentangle his cow from the rope with which she was tied and an effort on his part to remove the cow from the hot sun where she was tied, into a shady place. The defendant, in his statement under oath at the trial, testified in his own behalf that Vason was trying to and threatened to take the cow forcibly from his mother's field, without paying the damages for the security of which he had pledged her, and, upon his taking hold of the rope by which the cow was held, to prevent his carrying out his threat, that Vason fired at him with a pistol, upon which he returned the fire with his shotgun; the pith of the...
To continue reading
Request your trial
-
Herndon v. State
...70 So. 592; Ryals v. State, 72 Fla. ----, 72 So. 369. In these cases will be found a discussion of the rule which we announced in Howard v. State, supra, which we have above, and the application thereof to the variant facts and circumstances as shown in such cases. We would also refer to in......
-
Killingsworth v. State
... ... enable the defendant to procure evidence to impeach the two ... witnesses; there is no showing of diligence nor do the ... averments go to the merits of the case, and they are in part ... cumulative, at least as to the witness Beard. See Judge ... v. Moore, 9 Fla. 269; Howard v. State, 36 Fla ... 21, 17 So. 84; Williams v. State, 68 Fla. 88, 66 So ... 424; Herndon v. State, 73 Fla. 451, 74 So. 511; ... Long v. State, 42 Fla. 612, 28 So. 855 ... The ... information was not defective, and there is no basis for the ... motion in arrest of judgment ... ...
-
Enson v. State
...is correct and that he exercised due diligence in preparing for the trial. See Mitchell v. State, 43 Fla. 584, 31 So. 242; Howard v. State, 36 Fla. 21, 17 So. 84; v. State, 53 Fla. 89, 43 So. 428. What we have said disposes of all the points presented and argued. The errors assigned are all......
-
Kirkland v. State
...not such as to convince defendant's counsel, but such as ought to produce on another trial an opposite result on the merits. Howard v. State, 36 Fla. 21, 17 So. 84. judgment is affirmed. TAYLOR, C.J., and SHACKLEFORD, COCKRELL, and WHITFIELD, JJ., concur. ...