Sanford v. State

• Decision Date: 16 October 1925
• Citation: 106 So. 406,90 Fla. 337
• Parties: SANFORD v. STATE.
• Court: Florida Supreme Court

106 So. 406

90 Fla. 337

SANFORD v. STATE.

Florida Supreme Court, Division A.

October 16, 1925

Rehearing Denied Dec. 15, 1926.

Error to Criminal Court of Record, Dade County; Tom Norfleet Judge.

Charles E. Sanford was convicted of manslaughter, and he brings error.

Affirmed.

(Syllabus by the Court.)

COUNSEL

George A. Worley & Son and Thompson, Barns &amp Thompson, all of Miami, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.

OPINION

WEST, C.J.

By information in the criminal court of record of Dade county, the defendant was charged with the crime of murder in the second decree. To this information a plea of not guilty was entered. The trial resulted in a verdict finding the defendant guilty of manslaughter. There was a motion for new trial, but the trial court denied this motion. To review the judgment imposed, writ of error was taken. There are a number of assignments of error. We will refer to such of them as seem to require consideration.

Several assignments are predicated upon rulings of the trial court, made when the case was called, denying to defendant time in which to prepare a motion for continuance. The ground of this motion, as stated generally, is the absence of three witnesses for defendant. But the record discloses that the witnesses named, although not then in court, would be available to give testimony when required, during the progress of the trial, and that two of them were called and did appear and testify on behalf of defendant.

It has frequently been held by this court that trial courts have and may exercise a broad discretion in granting or denying applications for continuance, and that the exercise of such discretion in such rulings will not be cause for reversal of the judgment, unless it is clearly shown that there has been a palpable abuse of discretion to the manifest injury of the party against whom it has been exercised. Jacques v. State, 86 Fla. 137, 97 So. 380; Maddox v. State, 69 Fla. 695, 69 So. 20; Hagan v. State, 66 Fla. 268, 63 So. 443.

The second question, embraced in several assignments, is that there was error in the selection of the trial jury. Before a jury was finally selected and sworn, it was necessary to issue three special venires, and it is contended in the brief that the rule previously announced by this court, namely, that, where successive special venires become necessary to complete the panel, each venire in turn must be exhausted in fact before resort can be had to jurors summoned a another venire, was not followed. Collins v. State, 31 Fla. 574, 12 So. 906. This rule is obviously sound, for the reason that to permit the calling of jurors from more than one venire, in making up the panel, may interfere with the intelligent judgment of the defendant in the exercise of his right of challenge. But the record, as we read it, does not sustain this contention. The first venire was quashed, upon motion of defendant, before the second was drawn; the ground of the motion not going to the question of the qualification or competency of the person summoned as jurors. The court thereupon, in the proper exercise of its judgment, ordered a second venire of four men from the body of the county. Section 2784, Rev. Gen. Stats. 1920; Mendenhall v. State, 71 Fla. 552, 72 So. 202; Colson v. State, 51 Fla. 19, 40 So. 183; Ford v. State, 44 Fla. 421, 33 So. 301. Four of the men who had been summoned on the first venire were summoned on the second venire, but this is not a resort to the former venire. That venire, having been quashed, had ceased to exist, but jurors summoned and appearing in response to it were not rendered ineligible to jury service when summoned upon a valid venire. State v. Haney, 151 Mo.App. 251, 132 S.W. 55; Reynolds v. Commonwealth, 133 Va. 760, 112 S.E. 707; Hisaw v. State, 13 Okl. Cr. R. 484, 165 P. 636. No question is made upon the third venire required to complete the panel.

There was no error in admitting in evidence a picture, identified as a true representation of the premises where the homicide occurred. Adams v. State, 28 Fla. 511, 10 So. 106; Young v. State, 58 Fla. 348, 96 So. 381. Nor was there error in the ruling denying defendant's motion for a verdict of acquittal. A defendant is not entitled as of right to an instruction to the jury to return a verdict of not guilty. Simon v. Finlayson, 79 Fla. 254, 84 So. 95; Drayton v. State, 78 Fla. 254, 82 So. 801; Hughes v. State, 61 Fla. 32, 55 So. 463.

The defendant, at the time of the attempted arrest of the accused, was an officer of the town of Silver Bluff. The charge...