Garner v. State

Citations

• 31 Fla. 170

Syllabus

<p>1. The recitals in a motion for a new trial do not of themselves afford evidence of their correctness, and in the absence of anything to the contrary, the presumption is that the action of the court in overruling a motion was predicated upon the ground that there was no evidence to sustain it.</p> <p>2. An exception to the ruling of the court, in either admitting or rejecting testimony, comes too late when made for the first time in a motion for a new trial.</p> <p>3. In the case at bar testimony was introduced on the part of the defense tending to show an overt act or demonstration on the part of the deceased at the time of the killing, calculated to excite a reasonable apprehension on the part of the accused that he was in imminent danger of losing his life, or suffering great bodily harm at the hands of the deceased ; also some testimony was given to the jury tending to show that a short time before-the killing the deceased had threatened to shoot the accused, and that these threats had been communicated to him. In addition to the foregoing testimony, the accused sought to prove by a witness that he knew of liis own knowledge that the deceased was in the habit of carrying arms secretly, but no offer was made to-show that the witness had ever imparted his knowledge to the ■accused: Held, That the refusal of the trial court to permit this, evidence to be given to the jury was not error.</p> <p>4. The testimony in this ca,se held sufficient to sustain the verdict.</p>