Ballard v. State

31 Fla. 266

• Court: Supreme Court of Florida
• Decided: January 15, 1893
• Status: Published

Opinion

Raney, C. J. :

The plaintiff in error and Lawrence Ballard were indicted at the Fall term, 1892, of Marion Circuit Court, for the murder of Charles Shafer on the 27th day of September of the same year, and tried at the same term in October. The plaintiff in error was found guilty of manslaughter and sentenced to twenty years confinement at hard labor in the State prison. Lawrence Ballard was acquitted.

I. The defendants moved for a severance on the grounds:

1st. That Lawrence Ballard was ready for trial, and insisted upon being tried, and was not able to give the bail required by the court, and that Lott M. Ballard was not then ready for trial;

2d. That the defenses of- the separate parties were antagonistic, as Lott would admit the homicide on his part in self-defense, and Lawrence would deny it on his part;

3d. Important evidence for the justice of the cause would be excluded on a joint trial, and be admitted on a severance;

4th. The evidence which will be given directly against one of the defendants would be prejudicial to the causé of the other if they should be tried jointly. The motion was supported by an affidavit of the defendants stating that “the facts in the above motion are true.” -The motion was denied.

The practice of trying separately persons jointly indicted grew out of the public inconvenience resulting from the exercise by each joint defendant of his several right to challenge jurors peremptorily. Each of them being entitled to the same number that the law accords him on trial of a separate offense, it was found that venire and tales were frequently exhausted, and great delay and serious public inconvenience were produced thereby, trials being at times prevented from this deficiency of jurors at the same assizes; and hence the plan of the crown’s having separate trials, in case the joint defendants would not agree to join in their peremptory challenges, was adopted in furtherance of public justice. At the common law it is not the right of the defendants to demand separate trials ; on the contrary, the allowance of separate trials on their application is a matter resting in the sound discretion of the trial court. We have no statute regulating the subject, or making it a matter of right in a defendant. 1 Bishop’s Crim. Pro., secs. 1018, 1028, 1032 ; Wharton’s Criminal Pleading and Practice, sec. 309 ; U. S. vs. Marchant, 12 Wheaton, 86 ; Whitehead vs. State, 10 Ohio St., 449; U. S. vs. Gibert, 2 Sumner, 19 ; Bixbee vs. State, 6 Ohio, 86 ; State vs. Soper, 16 Maine, 293 ; State vs. Smith, 2 Iredell. 402; Hawkins vs. State, 9 Ala., 137 ; and, according to some authorities, where there is no such statute it seems that the denial of it as against the application of the defendants is not assignable as error ; Maton vs. People, 15 Ill., 536 ; Thompson vs. State, 25 Ala., 41; Commonwealth vs. Robinson, 1 Gray 555; whereas in other oases it is said that it will not be done unless some injury be shown to have followed. Bixbee vs. State, and Whitehead vs. State, supra. We are not prepared to admit that an abuse of discretion in this matter that was palpably to the injury of the accused, who has been convicted on the joint trial, can not be reached by an appellate court; still the view we take of the merits of the motion now before us relieves us from having to decide finally this particular point of practice at this time.

In U. S. vs. Marchant, supra, it is said: In our opinion it is a matter of sound discretion to be exercised by the court with all due regaid and tenderness to prisoners according to the known humanity of our criminal jurisprudence. In Commonwealth vs. James et al., 99 Mass., 438, where two persons were indicted jointly for murder, and it was shown that evidence would be offered of a confession by one implicating both himself and the other, it was held by the Supreme Court of Massachusetts, before whom the trial was, that the motion of the latter for a severance ought to be granted, but the Attorney-General declared that he would not offer the stated evidence, and therefore the trial proceeded against the defendants jointly.

Wharton, in section 310 of his work mentioned above, says that where the defenses of joint defendants are antagonistic, it is proper to grant a severance. We do not doubt that it is, yet we would say of Roach et al. vs. State, 45 Tenn., (5 Cold.), 39, cited by him, that in so far as it founds its conclusion on the idea that the rejection by one joint defendant of jurors acceptable to or accepted by the other constitutes such antagonism, or is a ground for severance, it is erroneous. U. S. vs. Marchant, and other authorities supra. In Mask et al. vs. State, 32 Miss., 405, two defendants charged as principals in the second degree, moved for a severance, basing their motion on an affidavit in which each stated that he had no connection with the murder with which a third was charged as principal in the first degree, and that they each believed they could not have a fair and impartial trial if "tried jointly with the third ; and the denial of the motion was held not to be error.

As Lawenee Ballard is not before us, he having been acquitted, we do not consider the motion in so far as it relates to him. In so far as Lott is concerned, our view of the general grounds of the motion are as follows : As to the first ground, we think the fact that Lott was not ready for trial was not a reason for a severance on his application. Any good reason he may have had for not being ready would have addressed itself more properly to the discretion of the court as a ground for a continuance of the cause; and any good ground for a contiuuance applicable only to Lott, may have been a reason, of more or less force for a severance, at the instance of the State or on the motion of Lawrence, for the purpose of an immediate trial of the latter. As to the second ground, our judgment is that t here is no antagonism of defenses shown by the mere fact that one of two defendants will confess the alleged homicide as having been in self-defense on his part, while the other denies it as to himself. The two lines of defense do not antagonize the defendants; neither line necessarily conflicts with the other, but each may fully recognize the other. As to the third and fourth grounds it is sufficient to say that it does not appear what the ¡particular testimony or evidence referred to was; and further that in the absence of a statement, in proper form, of the testimony which it -was claimed pvould be excluded on or by reason of a joint trial, and of that which would be introduced thereon and be prejudicial to one of the defendants, we do not see how the trial judge could have held that there would be an exclusion of important testimony in the ene case or. an admission of prejudicial evidence in the other; and it is certain that we can not affirm that any error has been committed without any opportunity for an inspection of the testimony. There was no error in refusing the application for a severance.

II. The next assignment of error is as to the refusal of the motion made by ths plaintiff in error for a continuance. The motion was made on October 24th, 1892, the same day the preceeding motion was made and denied. It is supported by his affidavit, which states: That he is charged with the murder as having been committed September 27th, 1892; that the indictment was returned' on the 15th day of October, and the State announced ready tor trial on the 24th day of the same month, and that he could not safely-proceed to trial for the following reasons:

1st. He has not had a sufficient time to prepare for his defense, that he has been in the jail of Marion county from the time of the alleged homicide to the time of making of the affidavit, and has had no opportunity to prepare his defense, and to consult counsel to the satisfaction of himself and. to properly inform them of all the facts in the. case. 2d. That after the commission of the alleged homicide, there was great public excitement in the minds of the people of Marion county, and such public excitement continues up to the pr< sent time, and such public excitement agitates the public mind lo a high degree, and hath great prejudice against affiant, and that there is just and reasonable cause to appiehend that by reason of the excited state and condition of the public mind a jury obtained at this time might not be free to render justice to the defendant at this term of court. That there has not been since the time of the alleged homicide sufficient time for the public excitement to cool down. The public excitement was so intense there was great danger that violence might have been done to affiant, by reason whereof extra guards had to be employed for the security of his person from the violence of the public since affiant has been in custody. That the said excitement in the public mind is ■sufficient to intimidate and swerve the jury. Brd. That for nearly two years past he has been in the State •of Ohio, and absent from the State of Florida; that he ■desires to summon witnesses from said State, or take the deposition of witnesses residing therein, to whom he is personally known, to show his character of peace and quietness for two years past, and the general state of his mind during that time. 4th. Affiant expects to procure the testimony of one Samuel R. Smith that Shafer said that he would cow-hide affiant if he ‘’was returned here,'’ and would run him out of the State, and affiant has not procured the testimony of Smith because he has but recently learned that such will be his testimony, and that Smith’s residence is not known to him, bnt he is in some part of the State of Florida, and affiant expects to have Smith here at the next term of the court.

Motions of this character are in the sound discretion of the trial court, and the action of that court on them will not be reversed unless there has been a palpable abuse of that discretion to the disadvantage of the accused, or whereby ills rights may have been jeopardized. The rules as to granting continuances are substantially the same in civil and criminal causes, except as modified by the <1 ifferences in procedure in t he two classes of causes; yet affidavits for continuances should be scanned more closely in criminal than in civil causes, because of the superior temptation to delay presented by the former class. All facts necessary to show a clear abuse of discretion to the injury of the accused must be presented, and wherever the record is either silent or uncertain on any point material to establish such an abuse, the presumptions are all in favor of the correctness of the ruling denying the motion. Harrell vs. Durrance, 9 Fla., 490; Barber vs. State, 13 Fla., 675 ; McNealy and Roulhac vs. State, 17 Fla., 198; Blige vs. State, 20 Fla., 742; Denham vs. State, 22 Fla,, 664; Newberry vs. State, 26 Fla., 324, 8 South. Rep., 445; Garner vs. State, 28 Fla., 113, 9 South. Rep., 835; Hodge vs. State, 29 Fla., 500, 10 South. Rep., 556; Robinson vs. Dibble's Admr., 17 Fla., 452; Sanford vs. Cloud, 17 Fla., 532; Livingston vs. Cooper, 22 Fla., 294; Common Law Rule 49.

The first of the alleged grounds for a continuance is . well disposed of by calling attention to the fact that the affidavit shows no effort at preparing his defense, nor any obstruction thereof, no refusal to the prisoner of an opportunity to see and confer with his counsel, nor any delay in procuring counsel, no reason why the time was not sufficient for preparing his defense and consulting satisfactorily with counsel, and properly informing them of the facts of the case. This part of the affidavit states no facts which may not be entirely consistent with absolute laches, or even designed omission of attention to the matter of his defense. As to the-second ground, the mere fact that there is in the record neither any corroborative evidence of its statements, nor any attempt to show that the accused was prevented from getting such evidence by the stress of circumstances detailed, is sufficient reason for us to-refuse to review the discretion of the Circuit J udge in refusing the motion for a continuance on this ground.. This is the conclusion we came to in Adams vs. State, 28 Fla., 511, 10 South. Rep., 106, after full consideration as to a motion for a change of venue, where the circumstances detailed we.re not less serious in appearance and there was no corroborative proof nor evidence^ of any attempt of the character indicated or of any prevention thereof. The third ground finds its ex-jjlanation in the fact shown by the testimony adduced on the trial, that the prisoner’s alleged absence from the State was spent in the penitentiary of the State of Ohio, to which he was committed by a sentence of the-United States court here. In McNealy and Roulhac vs. State, 17 Fla., 198, it is held that a continuance will not generally be granted on account of the absence of a witness as to the good character of the accused. People vs. Wilson, 3 Parker’s Crim. Rep., 199. Informed as we are that Marion county, in this-State, was the usual place of the prisoner’s abode before his condemnation to prison life, and that he returned there immediately after his discharge from that •custody, we see no reason for further consideration of the ground—aground which can hardly claim to have received that serious consideration which must necessarily have excluded it from presentation to the court. The fourth ground is, to say nothing of other deficiencies, fatally defective in that it does not appear when or how recently he learned that Smith would testify as is claimed. It may not have been at a time that the courts would deem recent, viewed as to the subject-matter at hand.

It is not improper to call attention to the fact that ■th'e affidavit does not even state that the application for continuance was not “made for delay only.” Harrell vs. Durrance, supra, and Gladden vs. State, 12 Fla., 562, 570.

III. After the State had announced that it rested on the testimony which it had introduced, the plaintiff in error asked to have the co-defendan't, Lawrence Ballard, sworn as a witness in behalf of Lott, to the granting of which request the State Attorney objected, and the objection having been sustained by the court, •an exception was taken to the ruling. Counsel for the plaintiff in error base their assignment of error on Beet-ions 1095 and 2868 of the Revised Statutes, which ■had become operative before the homicide under consideration took place.

Under the common law no one of several persons jointly indicted for crime can be a witness for another of them until the case has been disposed of, by verdiet or jilea, as to the one ’offered as a witness though it seems it is not necessary to proceed to-sen tence after a verdict or plea of guilty. 1 Bishop’s;. Grim. Pro., sec. 1020, 1021; Adams vs. State, 28 Fla., 511, 584, 10 South Rep., 106, 112. Section 1095 of the-Statutes provides, wi+li certain limitations not necessary to be noticed, that no person in any court or before any officer acting judicially shall be excluded from testifying as a witness by reason of his interest in the-event of the action or proceeding or because he is a party thereto.; and the other section relied on (2863) is that the provision of law relative to the competency of witnesses in civil cases shall obtain also in criminal cases. The former of these sections regulates the competency of witnesses in civil cases as affected by interest in or being a party to an action or judicial proceeding. There is another section (10)3) which specifies the crimes, a, conviction of which, in' our courts, renders the convict incompetent to testify; and still another (1097) which renders other convictions admissible as to the credibility of the testimony of witnesses. The fact, however, is that none of these sections have-any effect, or were intended, to make a witness nf a joint or other defendant in behalf of either himself or another defendant, or to change the common law in this regard. They relate to witnesses proper, or, as the term is ordinarily understood, and it is Section 2908 of the same Revision that regulates the right of the accused in a case like this. It provides that in all criminal prosecutions the accused shall have the right of making a statement to the jury under oath of the matter of his or her defense. This section has been frequently construed, as the annotation of it shows, and as will be found by reference to the subsequent case of Ortiz vs. State, 30 Fla., 286, 11 South. Rep,, 611; from which decisions it will be seen that he is not given the status of a witness within the meaning of the three former sections. There was no error in the ruling of the judge; nor is it contended that the circumstances were such as made it the duty of the trial judge, after the testimony was all in, to submit the case of Lawrence Ballard to the jury before submitting that .of the plaintiff in error, or that any application to have this done Avas made, in order to qualify the former as a witness. Adams vs. State, 28 Fla., 534-5, 10 South. Rep., 112.

It may be remarked here that the defendants made statements under Section 2908 of the Revision.

IV. The remaining assignments of errors relate to the refusal of certain instructions to the jury which were offered by the plaintiff in error. Of these there were three, numbered respectively 4, 6 and 7, either of Avliich, had it been given, would have involved the trial court in the absurdity of charging the jury that they might return a verdict of manslaughter in the second degree, wdien the fact was and is that at the time of the homicide, and ever since, no such degree of manslaughter was or has been knoAvn to our laws, the Revised Statutes, which went into effect June 13th, 1892, having abolished the degrees existing under the former statutory divisions of crime.

V. Another instruction, the fifth, the refusal of which is complained of, is: If yon find from the evidence in this case, that the only persons present at the time of the killing were the deceased and the two defendants, and that no other person saw the act committed, and if you find that the defendants have made a reasonable statement of the facts and circumstances of said killing, and the facts stated by them are not denied or contradicted by any other witness on the part of the State, or proved to be untrue by any other evidence in the case, the jury will be warranted in believing what the defendants state, and with finding a verdict in accordance with said statements of the defendants.

Independent of the fact that there was evidence adduced by the State, of statements made by the plaintiff in error, soon after the killing, which tended to prove him guilty of a much higher degree of homicide than that of which he has been convicted, we think the judge was entirely correct in refusing to instruct the jury, in the manner requested, as to the credibility of the accused parties. It would have invaded the exclusive domaiD of the jury. He subsequently, of his own motion, charged the jury in substance that the sworn statement of each of the prisoners was to be considered and weighed as evidence, and compared with the other evidence in the case, and that the jury were authorized to give such weight to the sworn statements as in their judgment they were entitled to in .view of all the other evidence in the case, and that they were the exclusive judges of the evidence, and of the weight it was entitled to, and of the credibility of the witnesses. These instruction^ were proper and did not trench upon the exclusive province of the jury as to the weight and credibility of the testimony and witnesses and defendants.

VI. The eighth, ninth and tenth charges requested and refused were:

8th. The court charges you that a person whose life has been threatened by another is not bound to quit his business, but may pursue his ordinary lawful occupation, and if he meets with the person who has threatened him, and such person makes any overt act showing an intention to do-the threatened person great bodily harm, or to take his life, the person threatened may thereupon lawfully kill the person so threatening him, although it may afterwards turn out that the deceased was unarmed and the defendant in no danger whatever.

9th. The jury must put themselves in the place of the defendant Lott Ballard, and look at matters as they appeared to him at the time of the killing, and if it appears to the jury from the evidence that Lott had heard of threats of the deceased made against him, and that he as a reasonable man believed from any overt act of Shafer at the time of the killing that he was in danger of his life or of great bodily harm from the acts, motions, and words of the deceased, then'the-court instructs you that such killing was neither murder nor manslaughter, but justifiable or excusable homicide, and you should find the prisoner not guilty.

10th. It is not nesessary for the person assailed! to retreat from the attack upon him unless in his judgment and view of things as a reasonable man, it may be safely done. If the defendant, in view of the nature of the assault, as a reasonable man was. justified in believing that he was equally as unsafe to* retreat as to stand his ground, then he was in law-justified in standing his ground and repelling assault by assault.

The refusal to give each of these instructions was-excepted to.

The first of these three instructions is defective in. that it does not embrace the idea that the defendant reasonably believed when killing the deceased that he was in imminent danger of losing his life or sustaining great bodily injury. Smith vs. State, 25 Fla., 517, 6 South. Rep., 482; Lovett vs. State, 30 Fla, 142, 11 South. Rep., 550. The second one is also not accurate. A defendant may as a reasonable man have believed that he was in danger of losing his life, or of incurring great bodily harm, and yet the killing may not under-some circumstances be justifiable or excusable. One instance of this is where he has brought about the-necessity himself, without being reasonably free from fault. Again, in Lovett vs. State, supra, we said: “ The law regards homicides committed under such circumstances of apparent danger as done under the impelling influence of a reasonable belief that the stated necessity exists, and therefore excuses the killing the same as if the necessity had been real, instead of merely apparent, but it does not regard the belief as immaterial. If it did, its principle would be to justify homicide when the slayer does not feel that there is any necessity to kill.” The circumstances of a case may at least make it a question for the jury, whether a killing was not in pursuarce of a previously formed design to kill, instead of having been the result of a mere purpose of self-defense, although at the time of the altercation the first overt act may have come from the person slain ; still, without further discussion of this view, we are entirely satisfied that the circumstances were not such as could, with any show of reason, have caused the jury to find the killing justifiable or excusable in this case. Armed, as the defendant was, having the pistol in his hand, exactly how soon he does not tell us, and at least before the second lick was struck with the whip, there was no necessity, nor could a reasonable man believe there was any, for shooting the deceased who was in the wagon and had hold on the reins with at least one hand, and was not in a position from which, under the circumstances, the accused could have reasonably believed that he was in danger of incurring any great bodily injury. Section 2388 of the Revised Statutes provides that whoever shall unnecessarily kill another, whether resisting an attempt by such other person to commit any felony, or do any unlawful act-,, or after such attempt shall have failed, shall be deemed guilty of manslaughter. In our j udgment it is, to say the' least, a clear case of unnecessary killing, and if there was any error in refusing the instruction it is palpably a case of error without injury; and the same is true of the refusal of the other or tenth charge, which it is unnecessary to discuss. No intelligent jury could have returned a verdict for a less degree of homicide had all the rejected instructions been given.

The judgment is affirmed.