Webster v. State

• Decision Date: 05 April 1904
• Citation: 47 Fla. 108,36 So. 584
• Parties: WEBSTER v. STATE.
• Court: Florida Supreme Court

36 So. 584

47 Fla. 108

WEBSTER v. STATE.

Florida Supreme Court

April 5, 1904

In Banc. Error to Circuit Court, Bradford County; Rhydon M Call, Judge.

Alex Webster was convicted of murder in the first degree, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. An application for a continuance of a cause is addressed to the sound discretion of the trial court, and the ruling thereon will not be disturbed by the appellate court unless it clearly appears that the judicial discretion vested in the trial court has been abused to the disadvantage of the party excepting to the ruling.

2. Where a defendant in a criminal case makes an application for continuance, and does not show that the witnesses desired were within the jurisdiction of the court, nor that they were absent without the defendant's consent, directly or indirectly given, nor that the defendant expected to procure their testimony at the next term, the ruling denying the application by the trial court will not be reversed by the appellate court.

3. Where an indictment alleges that the crime of murder was committed by striking, cutting, and wounding with an ax which the accused 'then and there held in his hands,' and the accused testifies that the victim 'was about five feet away from me when I staved him with my ax,' and there is other testimony that accused 'threw an ax at' the victim, 'and it struck him' and 'stuck into him,' there is no material variance between the allegation and the proof.

4. It is the right and duty of defendants in trials of criminal cases to discover, on the voir dire examination of talesmen offered as trial jurors, grounds of challenge for cause to such talesmen; and, if they fail to do so, they cannot, as a general rule, after verdict, avail themselves of their ignorance of the existence of such grounds of challenge.

5. Grounds of a motion for new trial supported by affidavit in which it is alleged that a member of the jury was prejudiced and had a bitter feeling against defendant, and that defendant believes that said prejudice and bitter feeling materially militated against the defendant having a fair and impartial trial by said jury, cannot be sustained when no facts as to the existence of prejudice or bitter feeling are stated, but only an inference is sought to be drawn from a fact alleged, which fact was not known to defendant at the trial, and where there is no showing that defendant's counsel did not know of the alleged prejudice and bitter feeling at the trial.

6. Assignments of error predicated upon grounds of a motion for new trial that are not supported by evidence in the transcript cannot be considered by an appellate court.

7. Where the name of the sheriff appears on an indictment as a witness for the state, a ground of a motion for new trial alleging error in permitting the sheriff to serve the special venires had in the case will not be considered, where no objection was made before verdict to the jurors so summoned and it is not shown that the defendant was injured. Rev. St 1892, s 2937.

8. The mere failure of the court to charge the jury that the statute authorizes a majority of the jury in capital cases to recommend to the mercy of the court is not error.

9. Section 2947, Rev. St. 1892, requires that sentences in capital cases shall 'be executed within the walls or inclosure of the jail or prison where the prisoner may be confined'; and a sentence that the defendant 'be taken by the sheriff * * * to the yard surrounding the common jail * * * then and there' hung, is not in accordance with the statute, and is error for which the judgment and sentence will be reversed, and the cause remanded for a proper sentence.

COUNSEL T. W. Fielding, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

WHITFIELD J.

The plaintiff in error was indicted on October 16, 1901, in the circuit court for Bradford county, for murder in the first degree, for the homicide of one E. H. Fisher in Bradford county, Fla., on August 24, 1901. On November 3, 1903, he was arraigned and pleaded 'Not guilty.' At the trial on November 10, 1903, he was convicted of murder in the first degree, and from a death sentence he takes a writ of error to this court.

The first three assignments of error are on the overruling of a motion for a continuance of the cause 'to the next regular term of the court upon the following grounds, to wit: Because the defendant, having filed his affidavit of insolvency and request to have witnesses subpoenaed for him, had not secured his witnesses, and that defendant could not go to trial with safety to himself without said witnesses in his defense--and filed the following affidavit, to wit:

"State of Florida v. Alex Webster. Murder, 1st Degree. Alex Webster, being duly sworn, deposes and says that R. B. Jernigan and Ben Girtman are material witnesses in his behalf; that he expects to prove by said Jernigan that he was present and saw the difficulty between Fisher, deceased, and defendant, and that the deceased was at the time of the trouble advancing upon defendant with an ax drawn in striking position, and by said Girtman he expects to prove that he saw the difficulty, and saw Fisher draw an ax to striking position and advance on the defendant; that there are no other persons known to defendant by whom he can prove said facts; that due diligence has been used in procuring their attendance. Alex Webster.

"Sworn to and subscribed this 10th day of November, 1903. W. T. Weeks, Clerk. [Seal.]"

The motion was overruled, and defendant excepted.

This is all the bill of exceptions shows as to the motion for a continuance. Copied into the transcript outside of the bill of exceptions are an affidavit of insolvency, and petition for subpoena for Rufus Jernigan, Ben Girtman, J. W. Townsend, and J. B. Crews, as witnesses for defendant, an order of the court for the issuance of the subpoena for said witnesses, and the subpoena, upon which last there is no indorsement of service.

It is not necessary to decide here whether or not the affidavit of insolvency upon which an order was made for subpoena of witnesses for defendant and the order and the subpoena should appear in the bill of exceptions, for this court to consider them. The assignment fails on a consideration of the entire transcript. There is no showing that the witnesses desired were within the jurisdiction of the court, nor that they were absent without the defendant's consent, directly or indirectly given, nor that the defendant expected to procure their testimony at the next term. Repeated decisions of this court hold these allegations to be necessary. The established rule here is that applications for continuances are addressed to the sound discretion of the trial judge, and that his ruling thereon will not be disturbed by the appellate court unless it clearly appears that he has abused his judicial discretion therein to the disadvantage of the accused. Easterlin v. State, 43 Fla. 565, 31 So. 350; Bryant v. State, 34 Fla. 291, 16 So. 177; Bynum v. State, 46 Fla. ----, 35 So. 65; Ballard v. State, 31 Fla. 266, 12 So. 865, and cases cited. The rule has not been complied with, and it does not appear that the circuit judge abused the discretion vested in him in denying the application for continuance.

The fourth assignment of error is predicated upon the order overruling the defendant's motion for a new trial, containing 12 grounds, to which order the defendant excepted. The first, second, and third grounds of the motion for new trial relate to the sufficiency of the evidence to sustain the verdict, and the fourth ground is that the verdict is contrary to law and the charge of the court. The evidence will not be stated at length in this opinion, but it has been carefully considered by the court. The verdict is sustained by the evidence, and is in accordance with the law and the charge of the court.

The indictment charges that Alex Webster, 'with a certain ax which he, the said Alex Webster, then and there held in his hands, in and upon the body of the said E. H. Fisher, then and there, feloniously, willfully, and of his malice aforethought, and from a premeditated design to effect the death of the said E. H. Fisher, the said E. H. Fisher with the ax aforesaid did strike, cut, and wound,' etc. The defendant, in his testimony, said: 'Fisher was about five feet away from me when I staved him with my ax.' A witness for the state testified: 'Alex followed Fisher from Alex's house with an ax.' 'I saw Alex throw his ax at Fisher, and at the same time he cursed him. I saw Fisher fall. The ax stuck into him.' Another witness for the state testified: 'Alex threw an ax at Fisher, and it struck him, and then Alex ran away.' There was sufficient evidence from which the jury could infer premeditation.

Counsel for the plaintiff in error contends that evidence that the accused threw the ax an struck the fatal blow does not sustain the charge that he held in his hands the ax with which the fatal blow was struck, and that consequently there is a material variance between the charge and the proof. The court is of opinion, and holds, that the evidence in this case substantially sustains the charge, and that there is no material variance between the allegation and the proof in this case.

The fifth ground of the motion for new trial is: '(5) Defendant is informed and believes that one L. L. Sapp, a member of the petit jury that tried defendant, is a brother to one W. W. Sapp, deceased, and that said L. L. Sapp was prejudiced and had a bitter feeling against defendant on account of some former trouble between the defendant and said W. W. Sapp, deceased, and defendant believes that said prejudice and bitter feeling materially militated...