129 Ala. 94 | Ala. | 1900
A continuance of a cause is gen: erallv addressed to the judicial discretion of the court, and is of a class not revised by a superior 'court, unless a plain case of the abuse of such discretion has been presented.—Walker v. The State, 117 Ala.85.
In this case, the defendant proved that three of his witnesses, whose names were given, had been duly summoned; and he offered to prove that they were sick in bed and unable to attend court. On these grounds he moved the court for a continuance of the cause, which the court refused to grant, but put the State upon a written admission of what the defendant expected to prove by the absent witnesses, to which action of the court, the defendant excepted. It was not offered to be shown by the defendant what these witnesses would swear if present, and that their evidence was material, nor that their evidence was not merely cumulative of what other witnesses would prove, and such facts as would show that their absence would be prejudicial to him. The court required the State to admit the showing of what these three witnesses 'would prove, as a condition of its going to trial, which showing was made, X)resumably, quite as favorable to the defendant as it could consistently be made. Their evidence, as appears in the course of the trial, was cumulative of that of other witnesses. Without more than what here appears, there does not seem to have been a» abuse of the court's discretion in the matter, and an invasion of the defendant’s constitutional right, “to have compulsory process for obtaining 'witnesses in his favor.”—Walker’s case, supra; Davis v. The State, 92 Ala. 20; Kilgore v. The State, 124 Ala. 24; White v. The State, 86 Ala. 69; Childress v. The State, Ib. 77; DeArman v. The State, 7 Ala. 10; Terry v. The State, 120 Ala. 286; Martin v. The State, 126 Ala. 64.
There was no error in the action of the court in allowing the witness, Alexander, to remain in the court room during the trial, other witnesses having been excluded under the rule. That was a matter resting within the discretion of the court, not reviewable on •appeal.
The witness, Will Thompson, testified that he went to a designated place to look for and arrest the defendant] that lie made inquiry for him, stating that he had a warrant for him. A refusal to exclude this latter statement on the ground that the warrant itself was the best evidence, was proper. It related to a merely collateral matter.—Griffin v. The State, ante, p. 92.
Refused charge 1 for defendant, singles out and gives special importance to a. part of the evidence. Furthermore, the charge ignores the evidence tending to show a conspiracy between the defendant and said Reuben Watson, — the party referred to in the charge, — to steal and dispose of the cow.:—Frost v. The State, 124 Ala. 71.
The refusal to give charge No. 2 was without error. The jury might have had a reasonable doubt, as to which one, — defendant or Watson, — actually took the cow, and yet have believed beyond reasonable doubt that they conspired together to steal her, and that both were guilty, which conspiracy the evidence tended to ■show, and the charge ignores. 'Charge 3 is so manifestly faulty as to require no consideration.
Charge 4 was an improper instruction. It preter-mits the fact that defendant in fact believed the heifer was the property of Watson. The jury might have thought that defendant had some good reason for believing that the cow was Watson’s, and yet they might have been convinced beyond reasonable doubt that he did not so believe, and really, knew that it was not his property.
No error appearing, the judgment and sentence of the court must be affirmed.
Affirmed.
