Stinson v. State
| Decision Date | 08 November 1918 |
| Citation | 80 So. 506,76 Fla. 421 |
| Parties | STINSON v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied Dec. 20, 1918.
Error to Circuit Court, Columbia County; M. F. Horne, Judge.
R. L Stinson was convicted of murder in the second degree, and he brings error. Affirmed.
Syllabus by the Court
An affidavit in support of a motion for continuance upon the ground of absent witnesses, which shows that an effort was made to secure the presence of the witness at the trial by obtaining a subpoena for him to appear at the trial and testify, that it was served upon him in ample time to enable him to appear, and that he lived in a neighboring town in the same state, precludes any inference of lack of diligence on defendant's part in securing the presence of the absent witness.
An affidavit for continuance upon the ground of an absent witness, which contains a statement of facts to which it is affirmed the witness will testify and which appear to be material, should also set forth when and how the information was obtained by the affiant that the absent witness would testify as recited in the affidavit.
The denial of a motion for continuance, made by the defendant in a criminal prosecution upon an indictment charging murder in the first degree, which motion is based upon the ground of the absence of a witness and is supported by a sufficient affidavit showing that the absent witness will testify to a state of facts tending to show the absence of premediation will be considered harmless error, in view of a verdict of guilty of murder in the second degree which does not contain the element of premeditation.
The denial of a motion for a continuance, made by the defendant in a criminal case, which motion is based upon the ground of the absence of a witness and is supported by a sufficient affidavit showing the facts to which it is alleged the absent witness will testify, will be considered harmless error, if upon consideration of all the evidence adduced at the trial it appears that the defense in support of which the testimony of the absent witness was desired was not under the law available to the defendant.
A person who has been appointed by the sheriff to be a deputy under section 1675b, Florida Compiled Laws 1914, and who has taken and subscribed to the oath prescribed by statute and executed a bond with sureties and filed the same with the board of county commissioners, has no authority, and under the law is not allowed to perform any service as deputy sheriff until the bond is approved by the county commissioners.
In a criminal prosecution the defendant cannot avail himself of the defense of self-defense when it appears that the defendant himself brought on the situation under the compulsion of which he strikes the blow or fires the shot which he claims was justified.
One who believing himself to be a deputy sheriff, but whose bond as such has not been approved by the county commissioners as the law requires, cannot avail himself of the defense of self-defense, when, in attempting to arrest another without a warrant, the latter resists and a situation results under the compulsion of which the defendant claims to act. The defendant is in the situation of one who has provoked a difficulty.
In the trial of a cause the matter of permitting leading questions is within the discretion of the trial court and is not reviewable on writ of error.
A question propounded to a witness, the answer to which may tend to incriminate the witness, may be excluded upon objection by counsel for that reason, although the witness himself does not personally voice the objection.
A question propounded during cross-examination of a witness which is not in cross of any matter connected with the material facts brought out in the direct examination and does not tend to elicit any fact showing motive, interest, or animus of the witness, is properly excluded.
The burden is upon the plaintiff in error to make the alleged error to appear, because the presumption obtains that the judgment was right.
It is not allowable upon cross-examination to impeach a witness upon an immaterial matter.
It is not reversible error for the trial court upon motion of the state to strike testimony that is in effect a self-serving declaration of the defendant, not part of the res gestae, and harmful to the defendant in one aspect.
A statement by the defendant at the time of the difficulty cannot be said to be part of the res gestae unless it is so closely connected with the difficulty as to appear to grow out of the transaction and exclude the idea that it was a mere recital of some feature of the difficulty, or an opinion or comment upon it, the result of thought or design.
Where there is no doubt that the defendant unlawfully began a difficulty under the compulsion of which he acted and killed the deceased, a threat by the deceased against the defendant, made some time recently before the homicide, is not admissible in behalf of defendant.
Where the court overrules an objection to an improper question, such ruling will not be considered reversible error if the answer produces no injurious result to the defendant's defense.
A defendant to whom the defense of self-defense is not available may not show the mental attitude of his antagonist towards him, even though that attitude was hostile to the defendant.
Instructions to the jury requested by the defendant to be given which are inapplicable to the evidence are properly refused.
Section 3732, General Statutes 1906, denounces as an offense the act of any one who, having been appointed to any office, assumes to perform any of the duties thereof before he has qualified according to law.
COUNSEL J. B. Hodges and R. T. Boozer, both of Lake City, for plaintiff in error.
Van C. Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
The plaintiff in error, Stinson, hereinafter referred to as the defendant, was convicted in the circuit court for Columbia county of the crime of murder in the second degree upon an indictment charging him with the murder of James Prevatt on May 19, 1917. The indictment was filed on April 23, 1918, the defendant pleaded not guilty three days later, and the trial was begun on the 1st day of May following.
The defendant by his counsel moved for a continuance upon the ground that a material witness named Harry Green was then absent without the consent of the defendant. The motion was supported by the affidavit of the defendant, the certificate of Dr. Dyess that Green on April 30th was under treatment and not able to attend court, the affidavit of Mr. Gillen that Dr. Dyess was a reputable physician, and the affidavit of Mr. Albritton confirmatory of Dr. Dyess' certificate.
In support of the motion there was also attached the subpoena for Green and the sheriff's return thereon showing that it was served one or two days before the trial began. The affidavit of the defendant states that the sheriff's return upon the subpoena issued for the witness showed that the witness could not be found. The subpoena was directed to seven persons, Harry Green among them. The sheriff's return states that the writ was 'executed 4/29-30/18, by delivering a true copy to within witness.' Whether the subpoena was served upon Green or not, it sufficiently appears that his residence was known to be in a neighboring town, a subpoena was issued for him within ample time to secure his presence at the trial, but he was unable to attend on account of sickness. The defendant could not be charged with lack of diligence under these circumstances, and his affidavit complies with the rule as to absence of connivance on defendant's part at the witness' absence and as to averments that the witness' testimony would be material, that the facts cannot be proved by any other witness known to the defendant, and that the application was not made for delay only, and that he could not safely go to trial without the testimony of the witness whose testimony he expected to procure at the next term. This motion for continuance was denied, and the ruling is made the basis for the first assignment of error.
The affidavit filed in support of the motion for continuance states that the absent witness would testify that--
He
According to the defendant, the circumstances of the killing were as follows: The defendant was an employé of the East Coast Lumber Company, as night watchman. He had been appointed a deputy sheriff; had taken the oath and filed his bond with the county commissioners as the law directs, although the bond had not been approved. The deceased, Jim Prevatt, had a pistol and was carrying it concealed. This fact the defendant knew early in the day, but made no effort to arrest Prevatt then. The defendant said that he 'did not want to pull Jim at all until he forced me to do it.' At about 9 o'clock at night of the same day, the defendant met Prevatt on the railroad track and told him that he would have to arrest him. Prevatt said, 'All right,' and 'took his gun up in his right hand.' The defendant then ordered one of several bystanders to 'search' Prevatt. The defendant told the bystander that the pistol was in Prevatt's hand and to take it. The bystander stepped aside without getting the pistol, and the...
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