O. D. SMITH, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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O. D. Smith was convicted of first-degree murder and sentenced to death in Duval County Circuit Court. On writ of error to the Florida Supreme Court, Smith challenged the denial of his motion for new trial on multiple grounds, but the court affirmed the conviction, finding no error in the trial court's rulings or the sufficiency of evidence.
The Florida Supreme Court held that the trial court did not err in denying the motion for new trial. The court found that: (1) assertions of fact in a motion for new trial must be properly exhibited in the transcript to be considered; (2) the evidence abundantly and fully sustained the verdict; and (3) the trial court properly refused to give redundant jury instructions that had already been given in more accurate form.
“the assertions of fact in a motion for new trial are not self-verifying and amount to nothing before an appellate court unless the truth of such assertions are elsewhere properly exhibited in the transcript”
Establishes the fundamental rule that appellate courts cannot consider unsupported factual assertions in motions for new trial without proper documentation in the trial record.
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Join FLexlaw to unlock all legal intelligenceO. D. Smith was indicted, tried, and convicted of first-degree murder in the Circuit Court of Duval County. He was sentenced to death. Smith filed a m…
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Taylor, J.
The plaintiff in error was indicted and tried for, and convicted of, the crime of murder in the first degree and sentenced capitally in the Circuit Court of Duval County, and for review of this judgment comes here by writ of error. The sole assignment of error is the denial of the defendant’s motion for new trial.
The first, second, third, fourth, fifth and sixth grounds of this motion all question the sufficiency of the evidence to support the verdict returned, and will be considered last.
The seventh ground of the motion asserts error in the alleged refusal of the court to sustain a challenge for cause mjade by the defendant to a talesman, one J. L. Johnson. The transcript of record before us shows no such challenge and no such ruling bv t e eon tions of fact in a motion for new trial are not self-verifying and amount to nothing before an appellate court unless the truth of such assertions are elsewhere properly exhibited in the transcript.
The eighth ground of the motion for new trial complains of certain alleged remarks to the jury by the State’s Attorney in his argument. Here again the transcript fails to exhibit the fact that any such asserted remarks were either made by the State’s Attorney, or ruled upon by the court, or excepted to by defendant, save the assertion thereof in the motion for new trial itself. There is, therefore, nothing for our consideration in this ground. The ninth ground of the motion is for a new trial because of alleged newly discovered evidence. No affidavit verifying the alleged discovery of this new evidence appears to have been presented to the trial court in conformity with the rule on the subject, therefore there was no error in the ignoring of such ground by the trial court.
The tenth ground of the motion for new trial complains of the refusal of the court to give six several in structions requested by the defendant. All of the matter in these several refused instructions had already been given in substance to the jury in more accurate form by the trial judge, and there was, therefore, no error in the refusal to reiterate them in different language.
We have carefully examined the evidence in the cause and find that it abundantly and fully sustains the verdict found. There was a weak attempt to show insanity' in the defendant at the time of the commission of the crime, but the jury acted properly in ignoring such attempt.
Finding no error the judgment of the court below in said cause is hereby affirmed at the cost of Duval county, the plaintiff in error having been adjudged to be insolvent. '
Hocker and Parkhill, JJ., concur. Whitfield, C. J., and Shackleford and Cockrell, JJ., concur in the opinion.
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Citator
Cited By (13 total)
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Hall v. State, 78 Fla. 420 (Fla. 1919)…nveys the thought to the minds of the jury, it is not error for the court to refuse other instructions embracing in substance the. same thought but in different phraseology. See Pinson v. State, 28 Fla. [*440] 735, 9 South. Rep. 706; Smith v. State, 57 Fla. 24, 48 South. Rep. 744; Green v. State, 43 Fla. 556, 30 South. Rep. 656; Higginbotham v. State, 42 Fla. 573, 29 South. Rep. 410; Graham v. State, 72 Fla. 510, 73 South. Rep. 594; Hawthorne v. State, 72 Fla. 524, 73 South. Rep. 590; Fine v. State, 70 Fl…
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Stanley v. State, 93 Fla. 372 (Fla. 1927)…e jury to thirty minutes for each side. It is not disclosed by the transcript that the Court made an order limiting the time for argument, or that exception was reserved by the defendant to any such ruling. It was held in the case of Smith v. State, 57 Fla. 24, 48 So. Rep. 744, “The assertions of facts contained as grounds of a motion for a new trial are not self-verifying before an Appellate Court, and unless the truth of such assertions is elsewhere properly disclosed by the record, an Appellate Court c…
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Noble v. State, 68 Fla. 1 (Fla. 1914)…trial it is. stated that the court erred in not asking certain questions of jurors; but as there is no basis for this in the bill of exceptions it cannot be considered here. Grounds of a motion for new trial are not self supporting. Smith v. State, 57 Fla. 24, 48 South. Rep. 744. The contention that the statute is contrary to public policy is unavailing since the legislature declares the public policy of the State in enacting the statute. Courts do not consider the reasonableness of a statute when passi…
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