Samuels v. State

• Citation: 123 Fla. 280,166 So. 743
• Parties: SAMUELS et al. v. STATE.
• Decision Date: 16 March 1936
• Court: United States State Supreme Court of Florida

166 So. 743

123 Fla. 280

SAMUELS et al. v. STATE.

Florida Supreme Court, Division A.

March 16, 1936

Rehearing Denied April 6, 1936.

Error to Court of Record, Escambia County; C. M. Jones, Judge.

Le Roy Samuels and Oswald Brown were convicted of breaking and entering with intent to commit grand larceny, and of grand larceny, and Joe Griffin was convicted of petty larceny, and they bring error.

Affirmed.

COUNSEL D. W. Berry and R. P. Reese, both of Pensacola for plaintiffs in error.

Cary D. Landis, Atty. Gen., and Roy Campbell, Asst Atty. Gen., for the State.

OPINION

PER CURIAM.

On the 28th day of November, A. D. 1933, the county solicitor for Escambia county, Fla., filed information in two counts against Le Roy Samuels, Oswald Brown, Joe Griffin, Kenneth Brown, and Gus Cheshire. The first count charged them with breaking and entering with the intent to commit grand larceny; the second count charged grand larceny.

On March 28, 1934, the plaintiffs in error were brought to trial for the third time after two previous mistrials, and on March 30, 1934, the jury brought in a verdict of 'guilty as charged' against Oswald Brown and Le Roy Samuels, and a verdict of 'Guilty of petty larceny' against Joe Griffin.

This cause now comes before this court on writ of error to the final judgment of conviction.

The plaintiffs in error asked for a severance and separate trial from Gus Cheshire on the grounds that they were informed that certain incriminating admissions and confessions made by Cheshire would be offered in evidence; that any instruction that the court would give the jury to disregard them as to the plaintiffs in error would not remove from the minds of the jurors such admissions and confessions or the prejudicial effect of such testimony; and that the defense of the said Gus Cheshire and of the defendants are antogonistic.

Did the trial court commit reversible error in denying the motion for severance?

The granting or denial of a motion for severance is largely discretionary, and the ruling of the trial court thereon will not in general be disturbed, where no abuse of discretion is shown. See Suarez et al. v. State, 95 Fla. 42, 115 So. 519; Daniels v. State, 57 Fla. 1, 48 So. 747; Ballard v. State, 31 Fla. 266, 12 So 865; Roberson v. State, 40 Fla. 509, 24 So. 474; 16 C.J 784.

The record shows that the defendant, Gus Cheshire, was not in fact on trial with the plaintiffs in error; further, the testimony given in open court by Gus Cheshire would have been admissible even had a severance been granted; therefore, this court is of the opinion that no injury was occasioned by the denial of the motion for severance, and the ruling of the trial court will not be disturbed.

The next assignment of error is as to the refusal of the motion made by the plaintiffs in error for a continuance predicated on the claim that the plaintiffs in error could not safely go to trial without the testimony of one Frank Duseck. The plaintiffs in error contend that Gus Cheshire changed his testimony in the second trial and testified that it was Frank Duseck, instead of Joe Duseck, who repaired the car. The plaintiffs in error further contend that in a deposition Frank Duseck would have testified that Gus Cheshire and these defendants did not come to his place on the night of the robbery, or at any other time, nor did he repair a car for them.

Because of the improbability, considering the entire record, that the testimony would have materially affected the result, the trial court will not be held to have abused its discretion in denying the motion for a continuance. The trial court was familiar with the facts and circumstances disclosed at the trial, and his denial of the application for continuance was justified as appears by the whole record here.

In Hall v. State, 70 Fla. 48, 69 So. 692, this court, speaking through Mr. Justice Taylor, said:

'The rule is that trial courts have a broad discretion in granting or denying applications for continuance of causes, and that their exercise of this discretion will not be reversed by an appellate court unless it be clearly shown that there has been a palpable abuse of such discretion to the manifest injury of the party against whom it has been exercised. The rule further requires that applications for continuance in criminal causes shall be more closely and

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