Williams v. State
| Decision Date | 13 March 1907 |
| Citation | 43 So. 428,53 Fla. 89 |
| Parties | WILLIAMS v. STATE. |
| Court | Florida Supreme Court |
Error to Criminal Court of Record, Hillsborough County; Horace C Gordan, Judge.
Jim Williams was convicted of assault with intent to murder, and brings error. Affirmed.
Syllabus by the Court
An application for the postponement of a trial is addressed to the sound judicial discretion of the trial court, and the ruling of such court upon such application will not be disturbed by an appellate court, unless an abuse of this discretion is clearly shown.
When the trial of a criminal prosecution has been set for a day certain, of which the defendant has been duly informed, and such trial has already been postponed for one day at the defendant's request, no abuse of judicial discretion upon the part of the trial court is made to appear in refusing to allow defendant time to prepare a motion for a continuance when defendant waits until the case is actually called for trial before making such request; it being also shown that defendant had been afforded ample opportunity to prepare such motion prior to the calling of the case for trial.
General objections to evidence proposed, without stating the precise grounds of objections, are vague and nugatory, and are without weight before an appellate court, unless the evidence objected to is palpably prejudicial, improper, and inadmissible for any purpose or under any circumstances.
No error was committed by the trial court in refusing the request of defendant in a criminal prosecution to permit his attorneys to talk to two state witnesses who had not been called upon to testify when the state had rested its case especially as said witnesses were introduced by the state in rebuttal.
Where one of the errors assigned is based upon the overruling of the motion for a new trial, and said motion consists of a number of grounds, an appellate court will consider only such grounds as are argued.
Evidence examined, and found sufficient to support the verdict.
Applications for new trial upon the ground of newly discovered evidence are looked upon by the courts with distrust and disfavor, and are granted only under the following restrictions: (1) The evidence must have been discovered since the former trial. (2) The party must have used due diligence to procure it on the former trial. (3) It must be material to the issue. (4) It must go to the merits of the cause, and not merely to impeach the character of a witness. (5) It must not be merely cumulative. (6) It must be such as ought to produce on another trial an opposite result on the merits. The party applying must make his vigilance apparent; for if it is left even doubtful that he knew of the evidence, or that he might but for the negligence, have known of and produced it, he will not succeed in his application.
H. S. Phillips, for plaintiff in error.
W. H. Ellis, Atty. Gen., for the State.
Jim Williams, the plaintiff in error, was convicted of an assault with intent to murder, and sentenced to a term of 10 years in the state prison.
Four errors are assigned; the first being that 'the court erred in refusing to permit counsel for the defendant below to prepare in writing a motion for a continuance in said cause, and file the same.'
We find that on Monday, the 26th day of March, 1906, the case was set for trial on the following Friday; that defendant made no effort to have his witnesses summoned until the afternoon of the 29th, when his counsel handed a list of his witnesses to the judge and requested that subpoenas be issued for them stating that defendant would make an insolvency affidavit when brought to the courthouse; that thereupon the judge stated that the case was set for trial on the morning of the 30th, and he did not think it possible to secure the attendance of the witnesses in that limited time, and that they should have been summoned earlier, but that he would have subpoenas issued for them; that the deputy sheriff to whom the names of the witnesses were handed, failed to deliver them to the clerk, and the subpoenas were not issued, whereupon the case was continued for one day at the request of defendant; that no request was made of the sheriff or of the court by defendant at the opening of the court on the morning of the 31st for the names of the witnesses to be called; that the case was not called for trial until 11:15 o'clock that morning, when for the first time defendant requested that his witnesses be called, and, finding all absent but one, requested the court to allow an opportunity of preparing a motion in writing for a continuance on the ground of the absence of all material witnesses. The refusal of this request forms the basis for this assignment. No error is made to appear here, as no abuse of judicial discretion in denying such application is shown. See Clements v. State, 51 Fla. 6, 40 So. 432, and numerous authorities therein cited. Instead of due diligence on the part of defendant or his counsel in the endeavor to have the witnesses present having been shown,...
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...immateriality were sufficient to warrant the trial court in excluding it? See Kirby v. State, 44 Fla. 81, 32 So. 836, and Williams v. State, 53 Fla. 89, 43 So. 428. This is the question we are called upon to answer. doing so, however, it is advisable for us to determine whether or not this ......
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