Walker v. State, 117 Ala. 85

Walker v. State

117 Ala. 85 | Ala. | 1897

COLEMAN, J.

The defendant was convicted of the larceny of a hog. Before the trial was entered upon, the defendant applied to the court for a continuance, which was "refused, and after conviction moved the court for a new trial, which motion was overruled.

*88It is well settled that the statute, authorizing an exception to the action of the court overruling a motion for a new trial, has no application to criminal cases. It is also settled, that the granting of continuances, or the refusal to grant a continuance, is purely discretionary and not revisable on appeal. The rule of practice as to continuances can not be so applied as to contravene the seventh section of the Bill of Rights, Art. I. of the constitution, section 7, which declares that in criminal prosecutions the accused has a right “to have compulsory process for obtaining witnesses in his favor.”

The record states that the defendant requested the court to set the case down for a day later of the term, and to grant him compulsory process for his absent witnesses. These witnesses had been regularly summoned, and had failed to attend. No convenience of the court, nor any condition of the docket of the cases for trial, can authorize the denial of this right of the accused, guaranteed to him by the constitution of the State,

There are two reasons why the action of the court must be sustained in the present case. In the first place, no showing was made that the absent witnesses were within the jurisdiction of the court, and there ■ was no exception to the ruling of the court. We are of opinion that to entitle a party to compulsory process, the court has the right to require from him a showing as to the facts expected to be proved by the absent witnesses, and further, that the witnesses are within the jurisdiction of the court. The court should also satisfy itself of the diligence used to obtain the witnesses, and the bona fides of the application for compulsory process, and that it is not made for mere delay. In order to obtain a revisable error, it is necessary to reserve an exception.

We are of opinion that the defendant is entitled to a reversal upon another ground. The defendant made’a showing as to what the absent witness, Ranee Williams, would testify to if present. As to this statement the court said, “that it was not at all probable that'witness would admit the recent posession of the pi’operty if it was stolen, and he would not require the State to admit the showing,” but said further, “that if it developed that the real defense turned upon the identity of the hog, the showing would be permitted to go to the jury *89and after this statement the trial proceeded. The record does not inform us whether or not the statement of the court was made in the presence of the jury. There was no conflict in the evidence that the defendant on Monday morning, at the house of Mary Lee, was seen cleaning a hog, and the evidence for the State showed that it was the hog of Lettie Seawright as laid in the indictment. The-showing as to what the absent witness Ranee Williams would prove was as follows : ‘T know the hog which the defendant is charged with stealing. I sold said íiog to the defendant and delivered it to him at the house of Mary Lee, and was present when said hog was killed.” We are of opinion this evidence was. very material, was direct on the question of identity. Again, the defendant was indicted for larceny of' the hóg, and could not have been convicted of receiving stolen property. The court was under no legal obligation to state that the showing would be admitted as evidence under any conditions, but having made the statement, and the trial being entered upon, and the showing becoming material even as to the identity of the hog, its exclusion was erroneous. Our opinion is, that the statement must be considered as if the witness was present, and the testimony, excluded as irrelevaht or immaterial, had been offered in evidence.

Reversed and remanded.