Opinion
April 6, 1951. Rehearing Denied May 4, 1951.
Appeal from the Criminal Court of Record for Polk County, R.H. Amidon, J.
Raymond E. Tilghman, in pro.per., for appellant.
Richard W. Ervin, Atty. Gen. and Reeves Bowen, Asst. Atty. Gen., for appellee.
The appellant, Raymond E. Tilghman, and George Salter were informed against in the Criminal Court of Record of Polk County, Florida, by the County Solicitor of said County, and each was charged with the crime of breaking and entering a store, the property of Publix Food Store, in Lake Wales, Polk County, Florida, on the early morning of May 1, 1950, with intent to commit a felony. The information was filed on May 31, 1950, and the defendants were placed on trial before a jury on June 15, 1950. Verdicts of guilty were rendered and each of the defendants below was sentenced by the trial court to serve prison terms in the State Prison. Raymond E. Tilgham appealed from the judgment entered below.
The evidence adduced during the trial by the State shows that the defendants entered the Publix Food Store at Lake Wales in the early morning hours of May 1, 1950, and removed therefrom a safe by turning it end upon end until it reached the sidewalk in front of the store. An alarm was given, the police summoned, a search was made, and the two defendants were arrested not a great distance from the store in question within a few minutes after the store was entered. They were transferred to the County Jail at Bartow and placed upon trial in the Criminal Court of Record of Polk County some six weeks, or more, after their arrest. An examination of the record discloses that neither defendant took the stand during the trial nor offered any testimony in their behalf.
Appellant Tilghman contends, first, that the trial court erred in refusing to grant a continuance of the cause so that he might better prepare his defense. The trial court heard testimony on the merits of appellant's motion for a continuance of the cause and the facts developed that the appellant was notified on June 7th or 8th, 1950, that his case would be called for trial on June 15, 1950. Witnesses for the appellant, who would give relevant testimony, were summoned in behalf of the appellant prior to the date of trial as set in the lower court. In criminal cases we are committed to the rule that motions for a continuance are addressed to the sound judicial discretion of the trial court. Gurr v. State, 150 Fla. 65, 7 So.2d 590. The appellant failed to show an abuse of discretion in denying the motion for a continuance.
Appellant's second contention is that the trial court erred in refusing to furnish appellant counsel, upon request, to represent him during the progress of the trial. It has not been made to clearly appear that the appellant was not financially able to employ counsel to represent him at the trial. The record shows that the defendants had in their possession a pistol and an automobile when they entered the store and removed the safe to the sidewalk, but, arguendo, let us concede that the appellant was indigent and not able to obtain counsel to represent him at the trial. The answer is that the appellant was not charged in the information with a capital offense and therefore was not, as a matter of law, entitled to a court appointed counsel. Johnson v. Mayo, 158 Fla. 264, 28 So.2d 585.
Appellant's next contention is that the trial court erred in refusing to have summoned a list of witnesses for the defendants at State expense. It appears by the record that when a list of appellant's witnesses was presented and summons requested, he was interrogated as to the materiality and relevancy of the testimony that would be given by the witnesses were they adduced as witnesses at the trial. It appeared that the testimony desired by the appellant to be given by the witnesses could not, under the rules of testimony be admitted in the trial for the consideration of the jury. Since the testimony was irrelevant, immaterial and not in the least germane to the issues, then it was an idle gesture to bring the desired witnesses into court. Such witnesses as could give competent testimony for the appellant were subpoenaed to appear and testify.
It is next contended that the appellant was denied the right and privilege of preparing his defense, as he was taken into custody on or about May 1, 1950, and remained in jail to the date of his trial on June 15, 1950. It is difficult to appreciate the merits of the appellant's defense in light of the record certified to this Court. The evidence discloses that the appellant and Salter, about 3:00 A.M., on May 1, 1950, entered Publix Food Store at Lake Wales by breaking the glass front; they removed a large safe from the store to the sidewalk. An alarm was given and the two defendants immediately arrested. They were identified by witnesses as the men who broke and entered the store and removed the safe from the building. Error has not been made to appear.
Affirmed.
SEBRING, C.J., and ADAMS and ROBERTS, JJ., concur.