Smith v. State
| Decision Date | 05 November 1904 |
| Citation | 48 Fla. 307,37 So. 573 |
| Parties | SMITH v. STATE. |
| Court | Florida Supreme Court |
In Bank. Error to Circuit Court, Madison County; Bascom H Palmer, Judge.
O. P Smith was convicted of murder, and brings error. Affirmed.
Syllabus by the Court
1. An application for continuance on the ground of the absence of leading counsel is properly refused when unsupported by affidavit, and when it is not shown that other counsel present for the defense are not for any reason equally as well qualified and equipped for the conduct of the defense as the absent counsel.
2. An indictment charging the defendant on trial for homicide with the larceny of cattle of the deceased, that was presented by the grand jury prior to the homicide, is admissible in evidence on such trial for homicide as tending to establish motive.
3. Statements of the deceased, made after receiving the wounds that produced his death, that were not part of the res gestae, and that were not made under the circumstances that would admit them as dying declarations, are not admissible in evidence on a trial for such homicide.
COUNSEL C. J. Hardee and J. N. Stripling, for plaintiff in error.
W. H. Ellis, Atty. Gen., for the State.
The plaintiff in error, O. P. Smith, was indicted in the circuit court of Madison county for the crime of murder in the first degree, and on his trial was convicted thereof; the jury under the statute, recommending the mercy of the court, which reduced the sentence to life imprisonment, to review which trial the defendant comes here by writ of error. Before proceeding with the trial, the defendant proceeding with the trial, the defendant ground of the absence of his leading counsel, who was absent because of ill health. This motion was denied, and such ruling constitutes the first assignment of error. No affidavit was filed in support of the motion; neither was it shown that the defendant could not with safety proceed to trial in the absence of such counsel; nor was it pretended to be shown that other counsel, who were present in his defense, were not as well qualified in every respect as the absent counsel to present and conduct such defense. Under these circumstances we cannot adjudge that in the denial of such application for continuance there was any such abuse of the discretion with which the trial judges are vested in such cases as that it can be held to be error.
On the cross-examination of a state witness the defendant's counsel exhibited to the witness a diagram, and asked him the following questions: 'Did you not, at a former trial of this cause, testify that Smith was standing near the counter; that McClelland was standing near him, just west of him, and that Jenkins was standing behind McClelland; and did you not locate the positions of the parties on the diagram which I now hand you?' 'Look at the diagram in your hand, and state if you did not at the last trial locate the position of Smith, the defendant, McClelland, and Jenkins as thereon indicated?' To which questions the state attorney objected, and the court ruled that the objection should be sustained, unless the witness could identify the diagram. The witness stated in answer to both questions that he could not identify the diagram, whereupon the court sustained the objections, and excluded the questions, to which ruling the defendant excepted, and these rulings are assigned as the second and third errors. The witness in point of fact practically answered both of the questions when he stated that he could not identify the diagram. Such answers were equivalent to saying that, inasmuch as he could not identify the diagram shown him, he did not know whether or not he had located on it the positions of the parties inquired about, and for this reason, if for no other, no harm could have resulted to the defendant from the exclusion of the questions in the form as put to the witness.
What is said above in reference to the second and third assignments of error fully covers and disposes of the fourth assignment of error also.
The court, over...
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