State v. Brookshire

| Ala. | Jan 15, 1841

ORMOND, J.

— The question arising on the direction of the venire facias, issued to summon the grand jury, has been fully considered in the preceding case of the State vs. Phillips, and shown to be sufficient.

By our statute, Aik. Dig. 285, the Courts are empowered, on the affidavit of the defendant in a criminal case, setting forth that he cannot have a fair and impartial trial, to change the venue “to the nearest adjoining county, free from the like exceptions.” The defendant, in his affidavit, stated that Limestone and Morgan counties were subject to the same exceptions as Madison. No exception is taken to Jackson county, which adjoins Madison county.

The order of the Court was that, the venue be changed to Lawrence county, the boundaries of which no where touch the county of Madison. We are not however called on to decide whether the venue could have been changed to Lawrence county, as the proposition to change the venue to that county was not acceded to by the defendant, and he cannot therefore revise that decision; because, whether erroneous or not, it did not work any prejudice to him. The whole matter must of necessity rest in the discretion of the Court, to be exercised under a view of all the circumstances, and cannot be re-considered in this Court.

The manifest design of separating the witnesses from those under examination, is to secure an impartial administration of justice by preventing concert of action among them; but from the operation of this rule, it appears, attorneys will be excluded, if they are mentioned as witnesses when the other witnesses are sent out. [5 Carr & Payne 91.] But if not so excepted, and he hears the testimony, he will not be allowed to give evidence. [Rex vs. Webb, cited in 3 Starkie’s Ev. 1733.] If a witness, put under the rule, returns of his own accord and hears the testimony, or if witnesses should arrive at the courthouse and hear the testimony, or a part of it, before they are discovered, it will be in the discretion of the Court to permit them to testify or not. But as it would be a great hardship to deprive a party of the benefit of his witnesses when he has himself been in no default, the permission ought to be given, unless there be some peculiar circumstances forbidding it, which the Court, in the exercise of a sound discretion, will determine. [Beaman vs. Ellice, 4 Carr & Payne 585, and Rex vs. Colley, 1 Mood. & Malk. 329.]

It appears, therefore, that, as the attorneys of the defendant were not excepted from the operation of the rule when the other witnesses were sent out, there was no right to examine them as witnesses in the cause ; but that their introduction depended on the discretion of the Court under a view of all the circumstances of the case; and we cannot say that this discretion has been unwisely exercised.

The judgement of the Court below is, therefore, affirmed,