Melbourne v. State
| Decision Date | 13 February 1906 |
| Parties | MELBOURNE v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Monroe County; Joseph B. Wall, Judge.
Urbie Melbourne was convicted of murder in the first degree, and brings error. Reversed.
See 39 So. 593.
Syllabus by the Court
Defendants in criminal cases, applying for continuances on the ground of the absence of witnesses, must in all cases show diligence in procuring the attendance of such witnesses; but, where a second or any subsequent application for continuance is made on the ground of the continued absence of the same witness extraordinary diligence must be shown to have been exercised in procuring the evidence, else it is not error to refuse the application.
A talesman who, on his voir dire examination, states that he had formed an opinion as to the guilt or innocence of the accused, but that such opinion was not formed from talking with any witness in the case, but from rumor and newspaper reports, that such opinion was not fixed, but would yield readily to the sworn evidence in the case, and that he felt perfectly free to try said cause and to render a verdict therein according to the evidence at the trial, uninfluenced by such previously formed opinion, is a competent juror.
The right of challenge confers the right to reject, not to select, jurors, and there is no error in sustaining the challenge of the state for cause to a talesman who is an uncle of an intimate friend of the accused, who was present with the accused at the time of the homicide, and at a difficulty between the accused and the deceased a short while prior to the homicide.
When the fact that the deceased in a homicide case had a wife is wholly immaterial, irrelevant, and impertinent to any issue in the case, it is error to permit such fact to be shown in proof, as its only tendency would be to prejudice the defendant with the jury.
Rulings not excepted to at the trial cannot be assigned as error.
The following charge is erroneous: 'The killing of an officer of the law, when such officer is engaged in the lawful discharge of his duty, by any person resisting such officer and under such circumstances as not to constitute justifiable or excusable homicide, is murder in the first degree.' It is erroneous because, under our statute, to constitute murder in the first degree the killing must be done from a premeditated design to effect the death, whether the person killed be an officer of the law or not.
Charges should be predicated on the facts in proof, and, when not so predicated, they are erroneous.
A charge that assumes a material fact to have been proven, when there is conflict in the proofs as to such fact, is erroneous.
COUNSEL Louis A. Harris, for plaintiff in error.
W. H Ellis, Atty. Gen., for the State.
The plaintiff in error, hereinafter referred to as the defendant was indicted by the grand jury at the Spring term in April, 1904, of the circuit court for Monroe county for the crime of murder in the first degree. On the defendant's application the cause was continued until the following November term, 1904, at which term the trial was had, resulting in a conviction of the crime of murder in the first degree, and the defendant was sentenced to death. To review this judgment, he comes here by writ of error, returnable to the present term.
At the trial the defendant moved for a continuance on the ground of the absence of a witness, one Shelton Atwell; but the application was denied, and this ruling is assigned as the first error. There was no error here. The record before us shows that at the April term of the court a continuance was granted to the defendant on the ground of the absence of this same witness. It shows further that the said witness was personally present in the city of Key West almost continuously during the time between the former April term and the trial term in November, and that he was seen by both the defendant and his counsel during such time, and yet no subpoena or alias subpoena was applied for, or issued or served upon the said witness until the 22d day of November, the day before the convening of the November term, an alias subpoena was procured for said witness and was returned that he could not be found. This was such a lack of diligence on the defendant's part in procuring the attendance of this witness as rendered the refusal of his application for continuance proper. Defendants in criminal cases, applying for continuances on the ground of the absence of witnesses, are in all cases required to show diligence in procuring the attendance of such witnesses; but, where a second or third application for continuance is made on the ground of the continued absence of the same witness, extraordinary diligence must be shown to have been exercised in procuring the evidence, else it is not error to refuse the application. Shook v. Thomas, 21 Ill. 87; Birks v. Houston, 63 Ill. 77; Wilson v. King, 83 Ill. 232; Gay v. Kendig, 2 Rob. (La.) 472; Eames v. Hennessy, 22 Ill. 628; Carr v. Marshall, 1 Bibb (Ky.) 362; People v. Lampson, 70 Cal. 204, 11 P. 593; Dawson v. Coston, 18 Colo. 493, 33 P. 189; People v. Jocelyn, 29 Cal. 562; Unsel v. Commonwealth, 87 Ky. 368, 8 S.W. 144; Van Brown v. State, 34 Tex. 186.
The second, third, and fourth assignments of error are based upon rulings of the court overruling three several challenges for cause by the defendant to three several talesmen. There was no error in either of these rulings. Each of the talesmen on his voir dire examination answered substantially that he had formed an opinion as to the guilt or innocence of the accused, but that such opinion was not formed from talking with the witnesses in the case, but from rumors and newspaper reports; that such opinion was not fixed, but would readily yield to the sworn evidence at the trial; and that they felt perfectly free to try said cause and to render a verdict therein according to the sworn evidence at the trial, uninfluenced by such previously formed opinion. Under these circumstances the jurors were competent, and there was no error in overruling the challenges to them for cause. Brown v. State, 40 Fla. 459, 25 So. 63; Olive v. State, 34 Fla. 203, 15 So. 925; Andrews v. State, 21 Fla. 598; Marlow v. State (Fla.) 38 So. 653.
The fifth assignment of error is expressly abandoned here.
One T O. Johnson, a talesman, was asked on...
To continue reading
Request your trial
-
White v. State
... ... State, 51 Fla. 19, 40 So. 183: ... 'A defendant as a matter of right is not entitled to have ... any particular jurors impaneled to try his case. The right of ... peremptory challenge is a right to reject and not a right to ... select.' This was approved and followed in Melbourne ... v. State, 51 Fla. 69, 40 So. 189. We have repeatedly ... held that it is the duty of a party resorting to an appellate ... court to make the errors complained of clearly to appear, if ... they in truth exist; every presumption being in favor of the ... correctness of the rulings of the ... ...
-
Pittman v. State
...requirements. See the authorities cited in Clements v. State, supra, and also Melbourne v. State (decided here at the present term) 40 So. 189. third assignment must fall with the first and second. The fourth and fifth are identical; each being assignments that 'the court erred in admitting......
-
Singer v. State
...31 Fla. 340, 12 So. 689; Olive v. State, 1894, 34 Fla. 203, 15 So. 925; Brown v. State, 1898, 40 Fla. 459, 25 So. 63; Melbourne v. State, 1906, 51 Fla. 69, 40 So. 189; Lamb v. State, 1926, 90 Fla. 844, 107 So. 530; Blackwell v. State, 1931, 101 Fla. 997, 132 So. 468, 469, in which the rule ......
-
Lamb v. State
...Olive v. State, 15 So. 925, 34 Fla. 203; Brown v. State, 25 So. 63, 40 Fla. 459; Marlow v. State, 38 So. 653, 49 Fla. 7; Melbourne v. State, 40 So. 189, 51 Fla. 69. for rehearing denied. BROWN, C.J., and WHITFIELD, ELLIS, and STRUM, JJ., concur. BUFORD, J., disqualified. ...