Melbourne v. State

Citations

• 51 Fla. 69

Syllabus

<p>CRIMINAL LAW—CONTINUANCE—SECOND APPLICATION FOR—JURORS—QUALIFICATION OF—MURDER—DEFINI-NITION OF—CHARGES MUST BE IN CONSONANCE WITH FACTS PROVED—EXCEPTIONS.</p> <p>1. Defendants in criminal eases applying for continuances on the ground of the absence of witnesses must in all cases show diligence in procuring the attendance of such witnesses, but where a second or ány subsequent application for continuance is made on the ground of the continued absence of the same witness, extraordinary diligence must be shown to have been exercised in procuring the evidence, else it is not error to refuse the application.</p> <p>2. A talesman who, on his voir (Lire examination, states that he had formed an opinion as to the guilt or innocence of the accused, but that such opinion was not formed from talking with any witness in the case, but from rumor and newspaper reports, that such opinion was not fixed but would yield readily to the sworn evidence in the case and that he felt perfectly free to try said cause and to render a verdict therein according to the evidence at the trial uninfluenced by such previously formed opinion, is a competent juror.</p> <p>3. The right of challenge confers the right to reject, not to select, jurors, and there is no error in sustaining the challenge of the State for cause to a talesman who is an uncle of an intimate friend of the accused who was present with the accused at the time' of the homicide and at a difficulty between the’accused and the deceased a short while prior to the homicide.</p> <p>4. When, the fact that the deceased in a homicide case had a wife is wholly immaterial, irrelevant and impertinent to any issue in the cáse, it is error to permit such fact to be shown in proof, as its only tendency would be to prejudice the defendant with the jury.</p> <p>5. Rulings not excepted to at the trial cannot be assigned as error.</p> <p>6. The following charge is erroneous: “The killing of an officer of the law, when such officer is engaged in