Millender v. State, 46 So. 756

Millender v. State

46 So. 756 | Ala. | 1908

ANDERSON, J.

We do not think the trial court committed reversible error in compelling the defendant to go to trial without certain witnesses, under the circumstances as disclosed by the record. It is true all the witnesses, save one, had been ordered by the defendant in time and were within the jurisdiction of the court, *20and be was entitled to compulsory process requiring their attendance, or to make a showing for them before being put to trial. It seems, however, that the court offered to issue attachment for said witnesses, returnable instanter, and which was the most effectual way to get them. Nor does it appear from the record that the defendant accepted the court’s offer. He evidently preferred a showing to the presence of the witnesses, or, at least, in preference to having them attached. The court having offered compulsory process, and the defendant not availing himself of the offer, he cannot complain of the court’s action in not permitting him to make showings for said witnesses. The defendant should have accepted the offer, and, after doing so, could have well objected to being put to trial without said witnesses, or without the benefit of a showing, in the event they were not produced by the service of the attachment. As to the uselessness or impracticability of the court’s offer, we cannot anticipate, nor should the defendant have done so. . “Sufficient unto the day is the evil thereof.” The defendant should have accepted the offer, in order to take advantage of the court’s subsequent action in forcing him to trial without the showings because of the absence of the witnesses.

While we do not commend that part of the oral charge excepted to, or the illustration made to the jury by the court, it was not reversible error, as it was, at most, only calculated to mislead, and the effect of which could have been overcome by an explanatory charge, requested by the defendant.

Charge 3, requested by the defendant, was properly refused. It authorized the defendant to kill the deceased, under the conditions set out, regardless of his freedom from fault in provoking or bringing on the difficulty.

Charge 4, requested by the defendant, was bad. It not *21only authorized the defendant to act upon appearances, but justified the killing, whether in self-defense or not. It possesses the very vice that the court pointed out as not contained in charge 1 in the case of Kennedy v. State, 140 Ala. 1, 37 South. 90.

Charge 6, refused to the defendant, whether good or bad, was fully covered by given charge 11.

The judgment of the circuit court is affirmed.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.