William R. Newberry, Plaintiff in Error, vs. the State of Florida, Defendant in Error, 26 Fla. 334

Mitchell, J. 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 upon writ of error from an order of the Circuit Court overruling motion for new trial, and the following errors are assigned : I. The Court below erred in overruling the defendant’s motion for continuance; 2. The Court erred in sustaining the plaintiff’s demurrer to the defendant’s plea in bar ; 3.

The Court erred in overruling the defendant’s objections and exceptions taken during the progress of the trial of said cause, as the same appears of record; 4. That the Court erred in so much of his charge to the jury as was excepted to by defendant; 5. The Court erred in refusing to charge the jury as requested by defendant, in his written instructions numbered 1, 2, 3, 4, 5 and 6; 6. The Court erred in overruling defendant’s motion for a new trial. 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 injured by the absence of the leading attorney for the defense, because there were three other attorneys on the side of the accused, and there is nothing in the proceedings of the cause, from its inception to the close, which would induce the belief that the defendant did not have a fair trial and able defense. Second.

There was no error in sustaining the demurrer to the defendant’s plea of autre fois acquit pleaded in bar to the action, because the plea failed to state that the offence for which the defendant had been tried and acquitted was one and the same offence as that for which he was to be tried again, and was therefore fatally defective, i Bishop’s Criminal Procedure, sec. 814, and authorities there cited; Henry vs. State, 33 Ala., 389; Foster vs. State, 39 Ala., 229. 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 criminal cases in the several Circuit Courts of this State, it shall be the duty of the Judge presiding on such trial to charge the jury only upon the law of the case ; that is, upon some point or points of law or exceptions to evidence arising in the trial of said cause, and such charge shall be wholly in writing.” Under said first

section of the statute, the first part of the Judge’s charge quoted supra, in our opinion, was unexceptionable; but the latter part of the charge, that “ always remembering that every variance is not of itself an indication of any design to evade the truth on the part of those testifying,” does not contain the law of the case.

In the evidence of the principal witnesses for the State there were discrepancies and contradictions, and the charge of the Court tended to withdraw such discrepances and contradictions from the consideration of the jury, by stating to them that the discrepancies did not indicate that the witnesses thereby intended to evade the truth. It was not for the Court to inform the jury as to what was indicated by the contradictions in the witnesses’ statements, but it was for the jury to draw their own conclusions as to the motive of the witness in making them.

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 had a doubt as to the truthfulness of the statement about to be made by the defendant, and, if so, the remarks may have had weight with the jury in arriving at a verdict of guilty. Though no exception was taken to the remark at the time it was made by the Judge, we feel that it is proper to make the above observations as the case goes back for a new trial. 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.