Smith v. State

• Decision Date: 13 November 1934
• Citation: 117 Fla. 458,158 So. 91
• Parties: SMITH v. STATE.
• Court: Florida Supreme Court

158 So. 91

117 Fla. 458

SMITH v. STATE.

Florida Supreme Court

November 13, 1934

Rehearing Denied Dec. 26, 1934.

En Banc.

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Herman Smith was convicted of murder in the first degree, and he brings error.

Affirmed.

DAVIS C.J., and BROWN, J., dissenting in part.

COUNSEL

H. N. Roth and J. F. Burrow, both of Orlando, for plaintiff in error.

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

OPINION

BUFORD Justice.

Writ of error is to review a judgment of conviction of murder in the first degree without recommendation to mercy.

Plaintiff in error presents two questions in a general way. The first challenges the action of the trial court in overruling his motion for new trial. There was no error in that ruling. The motion is on general grounds and no error is pointed out in support of any ground of the motion.

The second question challenges the action of the trial court in not allowing him to amend his motion for new trial more than four days after judgment so as to include therein the ground of newly discovered evidence.

In extraordinary cases a motion for new trial may be amended after expiration of four days after rendition of the verdict and before hearing on the motion to correct flagrant error in the trial (Kirkland v. State, 70 Fla. 585, 70 So 592), but in this case no such error appeared.

Plaintiff in error alleged the newly discovered evidence to be in the fact that his codefendant, indicted with him, as to whom there was a severance and who had been acquitted after his conviction, would testify in his behalf if he was granted a new trial and stated his grounds thus:

'Additional Ground 1. That at the time of his said trial his codefendant Betty Casteel had been granted a severance by your Honor; and that the trial of said Betty Casteel did not take place until after this trial, and until after he had filed his motion for new trial herein. That at the time of his trial the said Betty Casteel refused in open court to testify therein, as was her right under the constitution of Florida.

'Defendant further states that subsequent to this trial and conviction, and subsequent to the filing of his motion for new trial herein, his said co-defendant Betty Casteel has been duly tried under the joint indictment against them, and duly acquitted, and that the said Betty Casteel is now a compellable witness for this defendant; and this defendant states that if a new trial were granted him herein the said Betty Casteel would testify that for several hours preceding the time of the homicide charged in the indictment that this defendant was so drunk and intoxicated as to be bereft of his normal senses and faculties; and that he did not become voluntarily intoxicated for the purpose of 'steeling' himself to commit the homicide complained of in fulfillment of a premeditated design or plan to effect the death of Jeneral M. Casteel.

'Defendant further states that he was unable to prove this fact by any living person at the time of his trial herein; and that said testimony of the said Betty Casteel is the only available method for him to establish such fact; and that if said testimony were available at the time of his trial herein the same would necessarily result in his conviction for no greater offense than that of murder in the second degree. Defendant states that said testimony is material and of vital importance to the preserving of his life, and he further states that Betty Casteel is now in the State of Florida and subject to the process of this Court, and will be available at the time of a new trial herein.

'Additional Ground 2. That at the time of this first trial herein Alice Casteel testified as a witness on behalf of the State, and in the course of said testimony stated that this defendant was not drunk or intoxicated on the evening of the date of the homicide charged in the indictment; and that said Alice Casteel remained steadfast in the said testimony despite the cross examination to which she was subjected.

'That on the trial of Betty Casteel under the joint indictment against the said Betty Casteel and this defendant in this cause for the same homicide, thesaid Alice Casteel was again sworn as a witness on behalf of the State, and in the course of her testimony on the trial of Betty Casteel did testify that this defendant was so drunk and intoxicated on the evening of the date when the homicide occurred as to be bereft of his normal senses and faculties.

'Defendant states that the testimony of Alice Casteel in connection with this matter on his trial amounted to perjury, and that the establishment of said testimony as perjured testimony did not and could not occur until after his trial herein, and after the filing of his motion for a new trial herein, and is only established by the testimony of said Alice Casteel on the trial of Betty Casteel which took place since the filing of this motion for a new trial herein.

'A copy of the transcript of the testimony of Alice Casteel in the case of State of Florida as plaintiff against Betty Casteel, lately pending at this term of this Honorable Court, is attached to and made a part of this petition, to the same extent as if fully set out herein in haec verba.

'Defendant states that if the said Alice Casteel had truthfully testified at his trial that he could not have been convicted under the law of any greater offense than that of murder in the second degree.'

'Applications for new trials upon the ground of newly discovered evidence are looked upon with distrust and disfavor by the courts. Dixon v. State, 77 Fla. 143, 80 So. 741; Williams v. State, 53 Fla. 89, 43 So. 428; Gilbert v. State, 61 Fla. 25, 55 So. 464; Williams v. State, 68 Fla. 88, 66 So. 424; Mitchell v. State, 43 Fla. 584, 31 So. 242; Howard v. State, 36 Fla. 21, 17 So. 84; Branch v. State, 96 Fla. 307, 118 So. 13; Herndon v. State, 73 Fla. 451, 74 So. 511; Florida, etc., R. Co. v. Knowles, 68 Fla. 400, 67 So. 122.

'And such applications are granted only under the following restrictions: 1.

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