Peterson v. State

63 Ala. 113 | Ala. | 1879

BRICKELL, C. J.

The continuance of causes, civil or criminal, rests in the sound discretion of the primary court, and its action will not be revised on error. When, without laches on his part, tbe defendant in a criminal case is not prepared for trial, because of the absence of witnesses, the practice has been, if there is no' reason to suspect that delay is the object, on an affidavit of the facts, which discloses the materiality of the evidence, to grant a continuance, or to put the State on an admission of its truth, or an admission that the witnesses, if personally present, would testify to the facts stated. The court, in its discretion, may adopt either course, as the particular circumstances may disclose that the one or the other is the more promotive of the ends of justice. If an admission of the truth of the evidence is made, no evidence in contradiction of it can be received. But if, as in the present case, the admission is simply that, if the witnesses were personally present, they w7ould testify to the facts stated, evidence in contradiction must be received. The affidavit of th6 facts the witnesses would prove, stands in the place, and is the substitute for the oral testimony, the witnesses would give if personally present. The witness being personally present, the evidence given by him would be subject to contradiction, and the substitute for that evidence is equally open to contradiction, unless the State has been compelled to an absolute, unqualified admission of its truth. — Starr v. The State, 25 Ala. 49; Olds v. Commonwealth, 3 A. K. Marsh. 467.

But it is the evidence of the witnesses, and not the truth of the affidavit, that if personally present they would testify as stated, which is open to contradiction. The State admits conclusively the truth of the affidavit — admits conclusively, that the witnesses, if present, would give the evidence; and whether they would give it or not, can never become an inquiry for the jury. The City Court manifestly erred, in instructing the jury that, if a material part of the affidavit for a continuance had been contradicted by one of the witnesses named in it, they could look to such contradiction, in determining whether they would credit any part of it. The State had admitted the witnesses would testify as stated in the affidavit; and whether the admission was true in fact, or not, the jury could not inquire. Its force and effect as to the absent witnesses could not be lessened or qualified, because, during the progress of the trial, one of these witnesses appeared, and did not give the evidence supposed. The only effect of his appearance and testifying was to blot out the admission as to his evidence, leaving it of full force as to the witnesses who did not appear. The inconsistency of the evidence it is admitted the absent witnesses would give, with the other evidence in the cause, is a fact which the jury may consider in determining its credibility and weight; as the inconsistency of the other evidence with that of the absent witnesses is to be considered, in determining its credibility and weight. To avoid a continuance, the State voluntarily admitted, that the absent witnesses, if personally present, would testify to the facts stated; and that admission was binding upon it, throughout the progress of the trial.

This error compels a reversal of the judgment. It is not necessary to discuss the other instructions to which exceptions were reserved.

Beversed and remanded. The prisoner will remain in custody, until discharged by due course óf law.