ROBERT BYNUM, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Robert Bynum was convicted of carnal intercourse with an unmarried female under age sixteen. The Florida Supreme Court affirmed the conviction, rejecting his challenges to the denial of a continuance motion, the admission of evidence regarding the victim's age, and the jury instructions.
The court affirmed the conviction, holding that: (1) the motion for continuance was properly denied because the affidavit failed to show due diligence in procuring the witness's presence or that the witness was absent without defendant's consent; (2) the father's testimony as to the victim's age was admissible primary evidence where he testified he knew the date independently; and (3) no error occurred in declining to define 'reasonable doubt' when the defendant did not request such definition.
“Motions for a continuance in criminal cases are to be closely scanned, and all facts necessary to show a clear abuse of the discretion reposed in the trial courts in such matters 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 that denies the motion.”
Establishes the strict standard for reviewing trial court denials of continuance motions in criminal cases.
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Join FLexlaw to unlock all legal intelligenceBynum was convicted of carnal intercourse with an unmarried female under the age of sixteen, allegedly committed on April 28, 1901. The defendant soug…
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Cockrrlu, J.
The plaintiff in error was convicted of having carnal intercourse with an unmarried female under the age of sixteen. The offense was alleged to have been committed on the twenty-eighth day of April, 1901.
The first assignment of error is based upon the overruling of the defendant’s motion for a continuance. In support of the motion the defendant filed an affidavit alleging the absence of a material witness by whom he expected to prove that the prosecuting witness had made contradictory statements. This affidavit does not come up to the rule heretofore laid down by this court in several particulars;.there is no proper showing of due diligence in attempting to procure the presence of the witness, nor does it appear that the witness is absent without the consent of the defendant. Motions for a continuance in criminal cases are to be closely scanned, and all facts necessary to show a clear abuse of the discretion reposed in the trial courts in such matters 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 that denies -the motion. Ballard v. State, 31 Fla. 266, text 282, 12 South. Rep. 865; Shiver v. State, 41 Fla. 630, 27 South. Rep. 36.
There was no error committed in permitting the father of the prosecuting witness to testify as to her age, over the objection that the family Bible is the best evidence. After stating on cross-examination that he had written the date of the birth in the Bible, but that he had not looked at it for ten years, he was asked by the court if he knew the date independently of such record, and answered that he did. This was primary evidence and admissible over the objection urged. Reg. v. Nicholls, 10 Cox Crim. Law Cas. 476; Weed v. State, 55 Ala. 13; State v. Cain, 9 West Va. 559; People v. Slater, 119 Cal. 620, 51 Pac. Rep. 957.
We can not consider the objections to the charges of the court, as no exceptions were taken at the time the charges were given, nor were the charges objected to embraced in the motion for a new trial. McCoy v. State, 40 Fla. 494, 24 South. Rep. 485. A supposed charge embraced in the motion does not appear to have been given.
The court charged that the presumption of innocence continued until overcome by the evidence beyond a reasonable.doubt, and a mere omission to define the phrase “reasonable doubt” was not error. If-the accused desired an instruction covering this, it was his duty to present the proper definition to the court and request that it be given. Shiver v. State, supra.
The evidence was sufficient to support the verdict, and the judgment is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Young v. State, 85 Fla. 348 (Fla. 1923)…'whether the “error complained of” has resulted in a miscarriage of justice. Charges given may be “complained of” by being-excepted to when given or embodied in a motion for new trial. Steele v. State, 85 Fla. 57, 95 South. Rep. 299; Bynum v. State, 46 Fla. 142, 35 South. Rep. 65, §2700 Rev. Gen. Stats. Errors contained in charges given but not objected to are waived. Errors waived are not complained of.” The “Harmless Error” statute (§2812 Rev. Gen. Stats.) does not repeal Section 2700, Rev. Gen. Stats.,…
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Clements v. State, 51 Fla. 6 (Fla. 1906)…ate. 34 Fla. 291, 16 South. Rep. 177; Hall v. State, 35 Fla. 534, 17 South. Rep. 638; Easterlin v. State, 43 Fla. 565, 31 South. Rep. 350; Gass v. State, 44 Fla. 70, 32 South. Rep. 109; Jones v. State, 44 Fla. 74, 32 South. Rep. 793; Bynum v. State, 46 Fla. 142, 35 South. Rep. 65; Webster v. State, 49 Fla. 131, 36 South. Rep. 584. As was said by this court in Gladden v. State, 12 Fla. 562, “In motions of this character much must be left to the tribunal before which the parties are. Circumstances occurring…
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Williams v. State, 92 Fla. 125 (Fla. 1926)…e is a material fact in a criminal prosecution, who knows her age independently of any record thereof, may be permitted to testify to her age, even though he had written the date in the family Bible which is not produced in evidence. Bynum v. State, 46 Fla. 142, [*127] 35 South. Rep. 65; Carter v. State, 68 Fla. 143, 66 South. Rep. 1000. The second assignment of error questions the sufficiency of the evidence to prove penetration. The prosecuting witness .testified that the defendant had sexual intercours…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McCoy v. State, 40 Fla. 494 (Fla. 1898)
- Lott M. Ballard v. State, 31 Fla. 266 (Fla. 1893)
- Wilburn Shiver v. State, 41 Fla. 630 (Fla. 1899)