26 Fla. 334 | Fla. | 1890
The plaintiff in error was tried and convicted for the larceny of a hog, at the Spring term of Hills-borough Circuit Court, 1890, and the case is brought here
As to the first ground: A continuance addresses itself to the sound discretion of the Court. Livingston vs. Cooper, 22 Fla., 292; Denham vs. State, 22 Fla., 664. And the Appellate Court will not control the discretion of the nisi prius Court in not granting a continuance, unless it is plain that injustice or injury has been done the party asking the continuance. Ahren vs. Willis, 6 Fla., 359 ; Gladden vs. State, 12 Fla., 562 ; Blige vs. State, 20 Fla., 742. In the case at bar the continuance was asked upon the ground that Mr. Sparkman, leading counsel for the defense, was unavoidably absent at the time of the trial, and that the defendant could not safely go to trial without Mr. Sparkman being present. That Mr. Sparkman was present the first week of the term of the court, and that he could not be present the second week, the defendant applied for a trial during the first week of the term, which was denied him. There was not sufficient cause in the grounds of the motion.to entitle the defendant to a continuance, and it follows that the trial Judge did not transcend his discretion in refusing the continuance. It cannot, we think, be contended that the defendant was
Third. This assignment is so indefinite that it will not oe considered. It refers to errors supposed to be committed and pointed out somewhere in the record ; but if such errors existed it was the duty of the party asserting it to distinctly point out the alleged errors.
Fourth. The Court charged the jury as follows: “You have heard the testimony and you are the judges of it, as also of the credibility of the witnesses and the weight of evidence. It is your duty to consider all the facts and circumstances of this case, reconciling all variances, contradictions and discrepances as best you can, and from the facts as you find them to make up or formulate your verdict. In doing this you have a.right to accept or reject any part or all of the evidence of any one or more of the witnesses who have testified, that you do not believe, always remembering that every variance or contradiction is not of itself an indication of any design to evade the truth on the part of those testifying.” The first section of Chapter 2096, act of March 2d, 1877, provides that “upon the trial of-all common law and
There is one other point in the case that we desire to consider. The defendant, who made a statement in his own defense under the statute, before going on the stand, was instructed by the Judge as follows : “You can state just so much of the facts of this case as you desire to state, but all that you do say must be true, and no one can ask you any questions.” This was not proper. The accused had the right to make his statement without being admonished by the Judge or any one else as to what or how he should make it, so long as he confined his statement to the case then on trial. The admonition given by the Judge may have been construed by the jury as meaning that the Judge
It is not considered essential to consider the remaining assignments of error.
The judgment is reversed, and the cause is remanded with instructions that a new trial be granted.