53 Fla. 89 | Fla. | 1907
Jim Williams, the plaintiff in error, was convicted of an assault with intent to murder and sentenced to a term of ten years in the state prison.
We find that on Monday, the 26th day of Mlarch, 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 court house; 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 South. Rep. 432, and numerous authorities therein cited. Instead of due diligence on the part of defendant
The second assignment is based upon the overruling of objections interposed by defendant to certain questions propounded to Dan Ryals, a witness on behalf of the State. It had been developed by the prosecution that on the same night the assault was committed, between one and two o’clock, a deputy sheriff, who was trying to arrest defendant for such assault, saw him on horseback with a shot gun, but got only within 50 or 75 feet' of defendant, when he whirled his horse around and went off in a gallop; that he was arrested a few days later, still having a shot gun in his possession. It was also brought out both on the direct and cross-examination of the deputy sheriff who arrested defendant that the gun which defendant had in his possession at that time and which he gave up to the deputy sheriff was bent and was in such condition that it would not shoot straight, though it had one shell in it, and that when witness saw defendant on the same night the assault was committed he did'not know what condition the gun was in which defendant had. The State then introduced Dan Ryals, who testified that shortly after one o’clock on the night of the difficulty defendant came to the house of witness and borrowed witness’ gun, which was in fine working order at the time, but was bent and mashed when witness got it back. Defendant objected to witness testifying as to what defendant said and did on the night he came to the house of witness and also as to the condition the gun was in when witness got it back. The defendant is confined here to the grounds of objec
The third assignment is that “the court erred in refusing to allow attorneys for defendant below to talk to two of the State’s witnesses, to wit: Lewis Brandon and Cleveland Wilson, after the State had rested, the said witnesses being present, but not placed on the stand.”
No -authorities are cited in support of this assignment and the only argument made is that there was an abuse of judicial discretion in such refusal. In what this abuse consisted is. not pointed out to us, and, as both of the named witnesses were placed on the stand by the State in rebuttal, it is not apparent wherein any error was committed by the trial court in refusing the request.
The fourth and last assignment is based on the denial of the motion for a new trial. We confine ourselves to such grounds of this motion as are argued here. McNish v. State, 47 Fla. 69, 36 South. Rep. 176; Spires v. State, 50 Fla. 121, 39 South. Rep. 181. The first, second, and third grounds of the motion question the sufficiency of the evidence to support the verdict. While there was some conflict in the evidence, it was ample to warrant the verdict.
