Leslie v. State

• Decision Date: 26 March 1895
• Docket Number: 1.
• Parties: LESLIE v. STATE.
• Court: Florida Supreme Court

17 So. 555

35 Fla. 171

LESLIE v. STATE.

No. 1.

Florida Supreme Court

March 26, 1895

Error to circuit court, St. Johns county; R. M. Call, Judge.

John Leslie, alias Charles Harrison, alias Charles Pearce, was convicted of burglary, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Under the provisions of section 2927, Rev. St., relative to change of venue in criminal causes, the application for such change is addressed to the sound discretion of the trial court, and a refusal of such an application will not be held as error by the appellate court, unless it appears from the facts presented that the court acted unfairly, and was guilty of a palpable abuse of sound discretion; and, where the change is sought upon the ground of alleged prejudice against the accused on the part of the inhabitants of the county this court cannot declare that any such reversible abuse of discretion has been committed when the facts urged as a necessity or reason for the change of venue in the application therefor have no other support than the bare affidavit of the accused applicant therefor.

2. Where the accused makes and files an affidavit for continuance of a criminal cause against him, and subsequently, in his statement under oath on the trial of another criminal cause against him, makes assertions that conflict or are materially inconsistent with the statements made in such affidavit for continuance, the latter is admissible in evidence to rebut the former.

3. Where a party who is found in possession of goods recently stolen directly gives a reasonable and credible account of how he came into such possession, or such an account as will raise a reasonable doubt in the minds of the jury, then it becomes the duty of the state to prove that such account is untrue, otherwise he should be acquitted; and the jury are the sole judges of the reasonableness and credibility of the account given.

4. Where an indictment for the crime of entering a building room, or office with intent to commit larceny alleges the ownership of the office entered to be in A., if the proof shows that A. occupies such office as a tenant or lessee of the real owner, it is sufficient to sustain the ownership as laid in the indictment. In this class of cases, as in larceny, proof of special or temporary ownership, possession or control, such as a lessee would have over the room in which the crime was committed, is sufficient to sustain an allegation in the indictment that such lessee was the owner.

5. If the court gives an erroneous instruction at the defendant's request, he is left with nothing to complain of if the court subsequently corrects the error committed in his favor, and at his request, by giving a correct instruction upon the same point.

COUNSEL F. W. Pope and M. C. Jordan, for plaintiff in error.

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

OPINION

TAYLOR J.

The plaintiff in error, at the fall term, 1894, of the circuit court for St. Johns county, was indicted, tried, and convicted of the crime of entering a building with intent to commit a misdemeanor, to wit, the crime of larceny of property below the value of $100, and was sentenced to confinement in the state prison for one year. From this judgment he comes to this court upon writ of error.

There was no error, as is contended for, in the ruling of the court below refusing the defendant's application for a change of venue. The affidavit of the defendant in support of his application for a change of venue was the only evidence produced to the court to establish the necessity urged for such change. The application was based upon the alleged belief of the defendant that he could not obtain a fair and impartial trial in St. Johns county because of the alleged fact that public sentiment in said county was very strongly against him, and that there was great bias and prejudice against him among the people of said county brought about by publications in the newspapers published in said county, and in the Jacksonville daily papers, and in the New York World, charging him with being a 'diamond thief,' and an 'hotel thief,' and as being a person who should certainly be convicted, and sent to state's prison; and that said newspapers have a good circulation, and that all of said publications tended to influence public sentiment against him; that this feeling was so strongly manifest against him that at the last term of said circuit court he was tried upon a similar charge, and found guilty by a jury without any evidence whatever of the truth thereof, without regard to law or evidence, and as a result of said bias and prejudice against him; which verdict of conviction the circuit court promptly set aside on his motion therefor.

Section 2927, Rev. St., provides that, 'when it shall appear to the satisfaction of the court by affidavit that a fair and impartial trial cannot be had in the county where the crime was committed, the court may direct the accused to be tried in some adjoining county where a fair and impartial trial may be had, but the accused shall be entitled to but one change of the place of trial.'

This court has repeatedly held that under this statute applications for changes of venue are addressed to the sound discretion of the court, and that the refusal of such applications will not be held as error, unless it appears upon the facts presented that the court acted unfairly, and was guilty of a palpable abuse of sound discretion. McNealy v. State, 17 Fla. 198; Irvin v. State, 19 Fla. 872; Greeno v. Wilson, 27 Fla. 492, 8 So. 723.

The affidavit of the accused was the only evidence offered to show that there had been in fact any adverse newspaper criticisms or comments, and we do not think that the court's refusal can be said to have been an abuse of its discretion in such cases when the facts urged as a necessity for the change of venue have no other support than the bare affidavit of the accused. Adams v. State, 28 Fla. 511, 10 So. 106. From the facts shown upon the defendant's application for a change of venue we cannot say that in its refusal by the court below there is any such palpable abuse of that sound discretion with which the court is vested in such cases as that we can pronounce it error.

The second error assigned is that the court below erred in compelling the defendant to go to trial of this cause while another cause of the state of Florida against him, in which he was charged with larceny of the property of one Annie Shepard, exceeding $100 in value, was still on trial, to wit, while the jury in said other cause was considering of their verdict therein.

The objections raised by the defendant to going into the trial of this cause were: (1) That the jury in the case of the state against him for larceny of the property of Annie Shepard had just retired to their room to consider of their verdict, and that he could not properly meet the charge in the present case while he was still upon trial in another case; (2) that in being compelled to go into the trial of this case he would be deprived of the benefit of the full panel of petit jurors, and would be thereby prejudiced; (3) because it is improper, unlawful, and incompetent to compel him to submit to being tried in two different cases, upon two different indictments, at one and the same time.

There is nothing in the record before us, except these stated objections, and the ruling of the court thereon overruling same, to show that in point of fact the defendant was forced into the trial of the present case while a jury were still out considering their verdict in another criminal case against him in the same court; and, as every presumption is in favor of the correctness of the rulings of the court below, where they depend for their propriety upon the existence or nonexistence of facts not properly disclosed by the record, we cannot declare this ruling to be error, because there is nothing properly in the record to show us that the defendant was in fact put upon trial in this case before the final conclusion of another criminal trial to which he had been subjected in another case before the same court.

The third assignment of error is upon the admission of the evidence of one Joseph Lynn at the trial. The evidence objected to was, in substance: That he (Lynn) went on the same train with the defendant from St. Augustine to Jacksonville, and was present when the defendant was arrested in Jacksonville by the police. That 'the police took out of defendant's pocket some silver money and a check, and placed them on a table. The defendant placed his hand over them, saying, 'Gentlemen, you cannot take my money from me in this way.' The policeman took his hand away from where it was immediately, but the check was gone. His pockets were searched, but it could not be found,--that is, the check. No one could tell where it had gone, or what had become of it. I did not see where the check went to.' There was no error in admitting this evidence. The proof was that the defendant checked a trunk in St. Augustine for Jacksonville. In this trunk the stolen property was found. This proof tended to show a concealment by the defendant of the check by which his trunk could be easily and quickly identified; and was relevant, because it tended to establish intentional concealment of the stolen goods. The court, after the defendant had made his statement under oath in his defense, permitted the introduction in evidence by the state of an affidavit for continuance made by the defendant in another of the cases pending against him in the same court. This affidavit was introduced as...