Newberry v. State
| Decision Date | 23 December 1890 |
| Citation | 26 Fla. 334,8 So. 445 |
| Court | Florida Supreme Court |
| Parties | NEWBERRY v. STATE. |
Error to circuit court, Hillsborough county; G. A. HANSON, Judge.
Syllabus by the Court
1. A motion for continuance addresses itself to the sound discretion of the court, and the appellate court will not control the discretion of the nisi prius court in not granting the continuance, unless it is plain that injustice has been done the party asking the continuance.
2. A plea of autrefois acquit is fatally defective if it fails to state that the offense for which the defendant had been tried and acquitted was one and the same offense as that for which he was to be tried again.
3. An alleged error will not be considered by the appellate court unless it is specifically pointed out.
4. It was improper for the court to instruct the jury that 'always remembering that every variance or contradiction is not of itself an indication of any design to evade the truth, on the part of those testifying.' The charge tended to withdraw the contradictory statements of the witness from the consideration of the jury, whose province alone it was to judge the motives of the witness in making such statements.
5. The judge should not say to a person on trial for crime who is about to make a statement of his defense anything calculated to affect his credibility with the jury.
COUNSEL Sparkman & Sparkman and Stevens & Peeples, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error was tried and convicted for the larceny of a hog at the spring term of Hillsborough circuit court, 1890 and the case is brought here upon writ of error from an order of the circuit court overruling motion for new trial, and the following errors are assigned: (1) The court below erred in overruling the defendant's motion for continuance. (2) The court erred in sustaining the plaintiff's demurrer to the defendant's plea in bar. (3) The court erred in overruling the defendant's objections and exceptions taken during the progress of the trial of said cause, as the same appears of record. (4) That the court erred in so much of his charge to the jury as was excepted to by defendant. (5) The court erred in refusing to charge the jury as requested by defendant in his written instructions numbered 1, 2, 3, 4, 5, and 6. (6) The court erred in overruling defendant's motion for new trial.
As to the first ground. A continuance addresses itself to the sound discretion of the court, (Livingston v. Cooper, 22 Fla. 292; Denham v. State, 22 Fla. 664;) and the appellate court will not control the discretion of the nisi prius court in not granting a continuance, unless it is plain that injustice or injury has been done the party asking the continuance, (Ahren v. Willis, 6 Fla. 359; Gladden v. State, 12 Fla. 562; Blige v State, 20 Fla. 742.) In the case at bar the continuance was asked upon the ground that Mr. Sparkman, leading counsel for the defense, was unavoidably absent at the time of the trial, and that the defendant could not safely go to trial without Mr. Sparkman being present; that Mr. Sparkman was present the first week of the term of the court; and that, as he could not be present the second week, the defendant applied for a trial during the first week of the term, which was denied him. There was not sufficient cause in the grounds of the motion to entitle the defendant to a continuance, and it follows that the trial judge did not transcend his discretion in refusing the continuance. It cannot, we think be contended that the defendant was injured by the absence of the leading attorney for the defense, because there were three other attorneys on the side of the accused and there is nothing in the proceedings of the cause from its inception to the close which would induce the belief that the defendant did not have a fair trial and able defense.
Second. There was no error in sustaining the demurrer to the defendant's plea of autrefois acquit pleaded in bar to the action, because the plea failed to state that the offense for which the defendant had been tried and acquitted was one and the same offense as that for which he was to be tried again, and was therefore fatally defective. 1 Bish. Crim Proc. § 814, and authorities there cited; Henry v. State, 33 Ala. 389; Foster v....
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