70 Fla. 48 | Fla. | 1915
The plaintiff in error by writ of error
' The first assignment of error is the denial of the defendant’s motion for a continuance of the cause until the next term of the court on the ground, of the absence of material witnesses. T„he affidavit in support of this motion was in compliance with the rule in such cases, but the State in opposition thereto proved quite conclusively that there were no such persons residing in the county of LaFayette as the two witnesses alleged in the defendant’s affidavit to be absent. The State’s proof established at leást a great probability that there were no such persons in existence anywhere as the two- pretended witnesses alleged to be absent, and that the naming of them as being absent was a mere ruse to- effect delay only.
The rule is that trial courts have a broad discretion in granting or denying applications for continuance of causes, and that their exercise of this discretion will not be reversed by an appellate court unless it be clearly shown that there has been a palpable abuse of such discretion to- the manifest injury of the party against whom it has been exercised. The rule further requires that applications- for continuance in criminal causes shall be more closely and rigidly scanned than in civil causes because of the greater temptation in the criminal case to seek delay. Under the circumstances disclosed in the transcript with reference1 to- the application made here we cannot say that there was such an abuse of judicial discretion in the denial of it as would justify this court in a reversal of the trial judge therein.
It is further contended that the conviction of the de
One who kills a person by mistake, while attempting and intending with premeditated design to kill another person, is guilty of murder in the first degree, and the indictment in such a case properly alleges that the premeditated design was to- effect the death of the person actually slain, since the law transfers- the felonious intent in such a case to the actual object of his assault, and the homicide so -committed is murder in the first degree. Sec. 99 Kerr on the Law of Homicide; 1 Bishop Crim. Law (8th ed.) Sec. 328; Wharton’s Crim. Law (9th ed.) Sec. 382; State v. McGonigle, 14 Wash. 594, 45 Pac. Rep. 20; Burchet v. Commonwealth, 8 Ky. Law 258, 1 S. W. Rep. 423; 4 Blackstone’s Com. 200; State v. Payton, 90 Mo. 220, 2 S. W. Rep. 394; State v. Murray, 11 Ore. 413, 5 Pac. Rep. 55; Jackson v. State, 106 Ala. 12, 17 South.
There are other assignments of error predicated on evidence admitted and rejected, but these are not argued or presented here, and will therefore be treated as abandoned-
We are of the opinion that the evidence fully sustains-the verdict found both in law and in fact, and finding no error in the record the judgment of the Circuit Court in said cause is hereby affirmed at the cost of LaFayette County, the • defendant having been adjudged to be insolvent.
Shackleford, Cockrell, Whitfield and Ellis, JJ., concur.