Jones v. State

• Citation: 32 So. 793,44 Fla. 74
• Parties: JONES v. STATE.
• Decision Date: 13 March 1902
• Court: United States State Supreme Court of Florida

32 So. 793

44 Fla. 74

JONES v. STATE.

Florida Supreme Court

March 13, 1902

Error to circuit court, Columbia county; Bascom H. Palmer, Judge.

Alex Jones was convicted of crime, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. An application for a continuance upon the ground of the absence of a witness must show that the applicant has exercised due diligence to procure the attendance of the witness.

2. Denial of a motion for continuance will not be reversed by an appellate court, unless there has been a palpable abuse of discretion, clearly and affirmatively shown by the record.

3. A statement made in the order of a trial court as to a matter in pais will be presumed to be correct, unless the contrary is made clearly apparent.

4. A statement or declaration of a person charged with crime is not rendered inadmissible in evidence against him by the mere fact that it is made after the commission of the crime. If it tends to show a guilty intent, it is admissible, for the guilty intent of a party may be shown by his acts, conduct and declarations before, at the time of, or after the commission of a criminal act.

5. The opinion of a witness, except as to a matter regarding which expert testimony is competent, is not legitimate evidence as to any matter that may be reproduced before the jury. It is the province of the jury to deduce its own conclusion from facts of common experience, uninfluenced by the opinion of any witness on those facts, especially where such opinion is sought on facts given in the testimony of another witness.

6. A question asked a nonexpert witness, seeking to elicit his opinion as to what must have been the necessary position of the hand and pistol of the person who shot another in a particular manner, where the witness did not see the person who shot, or the hand that held the pistol when it was shot is properly excluded.

7. Where alleged error in giving two or more charges asserting distinct propositions of law is made the basis of a single ground of a motion for a new trial, alleging generally that the court erred in giving such charges, and excepted to under and by virtue of an exception to the denial of the motion for new trial, this will be regarded as a general exception to the giving of the charges, and will not be further considered than to determine that any one charge was correct.

COUNSEL A. J. Henry and T. B. Oliver, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

PER CURIAM.

The plaintiff in error, Alex Jones, was convicted at the fall term of the circuit court of Columbia county, A. D. 1901, of an assault with intent to commit murder, and brings his case here by writ of error.

The first assignment of error is that the court erred in refusing to grant a continuance on defendant's application. The application was made on the ground of absence of a material witness, one W. G. Shealy and an affidavit of the defendant was filed that the said Shealy had been subpoenaed at the instance of defendant, and was in attendance at a previous term of court in response to the subpoena, when said cause was continued on account of the absence of a witness for the state; that the witness was absent without the procurement or consent of defendant either directly or indirectly given; that the testimony of the witness was necessary and material to his defense; that the application was not made for delay only, and defendant expected to procure the testimony of the witness at the next term of the court; that the witness was a resident of the county of Lee or Monroe, in the state of Florida; that defendant could not safely go to trial without the testimony of said witness, and expected to prove by him the following facts, which he could not prove by any other witness known to the defendant, viz.: 'That on the night and at the alleged time of the shooting alleged to have been done some eight miles from Lake City, Fla., this defendant was then and there in the constant employ of the witness W G. Shealy from early in the evening until a late hour in the night, at the place of the said Shealy's business in the town of Lake City, Fla., and then accompanied the said Shealy to his home in said town, and could not possibly have been at the place of the alleged shooting on the night or at the time such shooting is alleged to have been done; that said witness, immediately after this defendant's accusation, and frequently since, has told both affiant and affiant's counsel that he would testify to said facts upon a trial of said cause; that said witness was recently in Lake City and Columbia county, and was then informed by defendant and defendant's attorney that he would be needed as a witness in this behalf, and then promised to return and attend at this term of the court, but has failed to do so; that said witness was never given leave, directly or indirectly, by or for this defendant, to absent himself from attendance in said court in this behalf.' The court denied the application for continuance on the following ground, as set forth in the bill of exceptions, viz.: 'This being Tuesday morning, and the second week of court, and the absent defendant's witness not appearing any day of this court, and said cause having been several times called, and no attachment being asked for up [to] this time for said witness, and this cause having been on the docket for trial since December 6, 1899.' An application for a continuance upon the ground of the absence of a witness must show that the applicant has exercised due diligence to procure the attendance of the witness. Shiver v. State, 41 Fla. 630, 27 So. 36. Such motions are addressed to the discretion of the court, and the action of the trial court will not be reversed unless there has been a palpable abuse of discretion, clearly and affirmatively shown by the record. Ballard v. State, 31 Fla. 266, 12 So. 865; Bryant v....