May v. State

• Decision Date: 03 February 1925
• Citation: 89 Fla. 78,103 So. 115
• Parties: MAY v. STATE.
• Court: Florida Supreme Court

103 So. 115

89 Fla. 78

MAY v. STATE.

Florida Supreme Court, Division B.

February 3, 1925

Error to Criminal Court of Record, Duval County; James M. Peeler Judge.

George May was convicted of assault with intent to murder, and he brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Conflicts in evidence are questions for jury; conviction will not be set aside if there is sufficient evidence to sustain it except on affirmative showing that jury were influenced by considerations outside evidence. Conflicts in evidence are questions to be determined by the jury, and, in the absence of harmful error of procedure, a judgment of conviction upon a verdict finding an accused guilty will not be set aside where there is sufficient evidence to sustain a conviction of the crime alleged, unless it affirmatively appears that the jury were influenced by considerations outside the evidence.

Accused is entitled to be heard by himself or counsel, or both limitation of time for argument within reasonable bounds rests in discretion of trial court. In all criminal prosecutions the accused is entitled to be heard by himself or counsel, or both, but the limitation of the time for argument must of necessity, within reasonable bounds, rest in the discretion of the trial court.

Unreasonable limitation of time for argument is abuse of discretion requiring reversal. Where it appears from all the circumstances of the case that the time for argument in a prosecution of one accused of crime is unreasonably limited, such action of the trial court will be held an abuse of discretion, requiring a reversal of the judgment for a new trial.

Accused may waive statutory requirement of charging jury immediately upon conclusion of evidence. A statute which requires the judge in criminal trials to charge the jury immediately upon the conclusion of the evidence does not prescribe a hard and fast rule, a divergence from which constitutes of itself reversible error, but merely secures to the defendant a right which he may waive if he desires. Smithie v. State (Fla.) 101 So. 276.

COUNSEL

Edgar W. Waybright, of Jacksonville, for plaintiff in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

WEST J.

By this writ of error there is brought to this court for review a judgment of conviction upon an information charging assault with intent to murder. Reliance for reversal of the judgment rests first upon assignments which raise the question of the sufficiency of the evidence to support the verdict.

There is conflict in the evidence of the person alleged to have been assaulted and of the defendant as to what occurred in the encounter between them, but, on behalf of the state, there is evidence of an assault made by the defendant, accompanied by threats to kill the person assaulted, ample to sustain the material allegations of the information charging the crime. This conflict presented a question for the jury, which, when decided in due course by them, is not proper, under our system, for an appellate court to review. Collinsworth v. State, 82 Fla. 291, 89 So. 802; Kirkland v. State, 82 Fla. 119, 89 So. 356; Hamlin v. State, 80 Fla. 217, 85 So. 685; Brown v. State, 79 Fla. 523, 84 So. 384; Wallace v. State, 76 Fla. 175, 79 So. 634; Messer v. State, 75 Fla. 619, 78 So. 680; McCoy v. State, 75 Fla. 294, 78 So. 168.

The time allowed by the court for argument was limited to 20 minutes. Error is assigned upon this ruling, and it is urged here that the limitation of the argument of counsel to 20 minutes is an abridgment of defendant's right to be heard, for which there should be a reversal of the judgment.

The right of an accused in a criminal prosecution to be heard by himself or counsel, or both, cannot be denied him. Section 11, Declaration of Rights. But the limitation of the time for argument must of necessity, within reasonable bounds, rest in the discretion of the trial court. This is the general rule. The right may be waived, but, when requested, reasonable time must be allowed. The question to be determined is what is reasonable time, and this depends upon the facts and circumstances of each case. No hard and fast rule can be prescribed. But, if it appear that the time for argument is unreasonably limited, such action will be held an abuse of discretion, requiring a reversal of the judgment for new trial. This statement of the law finds general support in the adjudicated cases. McDuffee v. State, 55 Fla. 125, 46 So. 721; York v. United States (C. C A.) 299 F. 778; Samuels v. United States, 232 F. 536, 146 C. C. A. 494, Ann. Cas. 1917A, 711; Howard v. State, 77 Tex. Cr. R. 185, 178 S.W. 506; McLean v. State, 32 Tex. Cr. R. 518, 24 S.W. 898; Walker v. State, 32 Tex. Cr. R. 175, 22 S.W. 685; State v. Rogoway, 45 Or. 601, 78 P. 987, 81 P. 234, 2 Ann. Cas. 431; People v. Green, 99 Cal. 564, 34 P. 231; People v. Labadie, 66 Mich. 702, 33 N.W. 806; Wingo v. State, 62 Miss. 311; Hunt v. State, 49 Ga. 255, 15 Am. Rep. 677; Teague v. Commonwealth, 172 Ky. 665, 189 S.W. 908, L. R. A. 1917B, 738; Childers v. Commonwealth, 161 Ky. 440, 171 S.W. 149; State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89; City of Seattle v. Erickson, 55 Wash. 675, 104 P. 1128, 25 L. R. A. (N. S.) 1027; Hendrix v. United States, 2 Okl. Cr. 240, 101 P. 125; Kenninson v. State, 83 Neb. 391, 119 N.W. 768; Dixon v. State, 46 Neb. 298, 64 N.W. 961; State v. Shores, 31 W.Va. 491, 7 S.E. 413, 13 Am. St. Rep. 875; State v. Collins, 70 N.C. 241, 16 Am. Rep....