Conn v. State

• Decision Date: 03 April 1923
• Docket Number: 8 Div. 998.
• Citation: 96 So. 640,19 Ala.App. 209
• Parties: CONN v. STATE.
• Court: Alabama Court of Appeals

96 So. 640

19 Ala.App. 209

CONN v. STATE.

8 Div. 998.

Court of Appeals of Alabama

April 3, 1923

Rehearing Denied April 17, 1923.

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Oscar Conn was convicted of manslaughter in the first degree, and he appeals. Affirmed.

John A Lusk & Son, of Guntersville, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

From a judgment of conviction for manslaughter in the first degree defendant appeals.

Counsel for appellant assigns errors, 34 in number. As stated in the case of Null v. State, 16 Ala. App. 542, 79 So. 678, we think the assignment of error in a criminal case is good practice and is to be commended, though not required by statute. We there stated that by this means the errors complained of are brought directly and specifically to the attention of the court, and at the same time in no manner can militate against a compliance by this court with the statutory requirement to consider all questions apparent on the record or reserved by bill of exceptions.

The first four assignments of error relate to the ruling of the court in the following matter, as shown by the record:

"The defendant, being called upon by the court announced that he was not ready because of the absence of his witnesses, Emmett Edmondson, Charlie Edmonds, John Parcus, Charley White, and Mrs. Sudie Seigler, all of whom had been duly subp naed as witnesses in his behalf. The defendant then moved the court to pass the case a sufficient time to enable or allow the sheriff to serve an attachment on said witnesses and bring them into court. It was shown to the court without dispute that the witnesses named resided and were then in Marshall county, and had been duly summoned as witnesses for defendant in this case. It was reported to the court that information had been received by some person in court that the witnesses were sick. The court refused to pass the case, and refused to order or issue attachments for the witnesses, but required the defendant to write out a showing, or go to trial without such showing, and the defendant did write out a showing of what he expected to prove by said absent witnesses, which the state, through its solicitor, admitted said witnesses would swear, if present, and the court, over defendant's objection, required him to go to trial. And to this ruling of the court the defendant then and there duly excepted."

We are not impressed with the argument that as a result of this ruling the rights accorded defendant by section 6 of the Constitution 1901, were impaired. Whether the case should be passed or continued was a matter resting within the court's discretion. The accused was given the benefit of the testimony of the several absent witnesses by the showings allowed by the court and admitted by the state's representative. It appears, further, that the testimony of these witnesses was cumulative, and referred mainly to the character of the deceased, and that there were several witnesses present who testified in behalf of defendant on this subject. We hold that in this ruling there was no abuse of the discretion with which the trial court was vested. The following authorities appear to be conclusive as to this question: Childress v. State, 86 Ala. 77, 5 So. 775; Davis v. State, 92 Ala. 20, 9 So. 616; Winter v. State, 123 Ala. 1, 26 So. 949; Kilgore v. State, 124 Ala. 24, 27 So. 4; Martin v. State, 125 Ala. 64, 28 So. 92; Sanderson v. State, 168 Ala. 109, 53 So. 109.

Assignment of error 5 is:

"The said circuit court erred to the injury of the defendant in requiring the defendant to strike from the jury list as furnished, without the names of seven jurors who were excused in his absence."

This assignment is based upon the following proceedings, as shown by the record:

"Thereupon the clerk, under the direction of the court, prepared a list of jurors present from which to strike or select a jury. Said list contained 26 names. The defendant then objected to being required to select or strike a jury from this list, because it did not contain the name of 7 jurors who had been regularly drawn and summoned as jurors for said week of court and were present on Monday when the court was opened and the juries organized. The court had excused each of these 7 jurors on Monday from attendance on the court for the week on account of sickness of himself or some one in his family, but

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