51 So. 358 | Ala. | 1909
— We cannot say that the defendant was denied any constitutional right when the court refused to continue or postpone his trial in order that some of his witnesses might be brought into court by attachment. The Constitution provides that in all criminal prosecutions the accused has a right to have compulsory process for obtaining witnesses in his favor. This constitutional assurance is something more than an empty collocation of words. It secures an invaluable right, and its purpose is not to be served by an order for compulsory process made at a time and under conditions which indicate that such process cannot be executed in time to bring the witness to the trial. On the' other hand, it is not to be so construed in practice as to permit the accused to secure delay by applying for process at the last moment. To fasten error upon the trial court, it must be made to appear that the application was seasonably made, and accompanied by a showing as to what the absent witness is expected to swear in order that the court may judge of its materiality. In the case at bar, the defendant made his application for process after the state had announced ready for trial. This was upon the second judicial day of the week, and, while defendant’s counsel stated to the court that the witnesses for whom process Avas desired were material witnesses for the defendant, it Avas not made to appear what the evidence was Avhich counsel deemed material, nor that the application for process might not, in the exercise of diligence, have been made in time to secure its execution and the presence of the witnesses at the trial. This is in accord with what was said in Walker v. State, 117
Defendant was indicted for incestuous sexual intercourse or adultery with his niece. It appeared in evidence that this neice was somewhat more than 15 years of age at the time of the trial, and that she had given birth to a child about 10 months previously. The evidence for the state showed that for a considerable period covering the time when in the natural order of things the child had been begotten defendant and his niece lived together in the house with the defendant’s parents, aged people. It was competent for the state to show that at the time no one other than the defendant, his niece, and her grandparents lived in the house, as showing opportunity for the crime, and as tending in some measure to exclude the probability that some other man had access to the woman.
The age of Rainey Palmer, the niece, was a fact of importance; for, if she was over the age of consent at the time of the act or acts of sexual intercourse to which she deposed, she was particeps criminis, if she consented, and her credibility became thereby so affected that no conviction could be had on her uncorroborated testimony. . But the circumstances-under which the question to Creacy Palmer, the mother of Rainey Palmer, “How long was it after you were married until Rainey Palmer was born?” do not show clearly that the question was asked for that purpose, nor had the date of Creacy Palmer’s marriage been so fixed, nor was the court given to understand the defendant’s purpose to so fix it, as that the answer to the question would have
There was also error in sustaining the state’s objections to a number of questions put to Rainey Palmer on cross-examination by which the defendant sought to show that about the time when the child must have been conceived the mother had sexual intercourse with different men. It is clear, of course, that if defendant was guilty as charged, the degree or quality of his guilt was not to be changed by the fact here sought to be proved. On the other hand, the blood relation between defendant and Rainey Palmer not being denied, proof of defendant’s paternity established necessarily the fact of his guilt as charged. The prosecuting witness had testified that the defendant was the father of her child.
Able counsel have briefed the case for appellant, and they complain of the action of the trial court so far as instructions to the jury are concerned in two instances only. Other rulings have been examined, but hardly require special notice. Charge 20, refused to the defendant, contained a correct statement of the law; but it was a substantial duplicate of charge 23 which was given, and no error can be predicated of its refusal. If charge 15 is correctly transcribed into the record, it employed the word “seclusion” inaptly, and was well refused. We will not indulge an inference that “exclu
For the errors indicated, the judgment of conviction must- be reversed.
Reversed and remanded.