Freeland v. State, 8 Div. 680.

• Citation: 34 Ala.App. 313,40 So.2d 339
• Decision Date: 08 February 1949
• Docket Number: 8 Div. 680.
• Parties: FREELAND v. STATE.
• Court: Alabama Court of Appeals

40 So.2d 339

34 Ala.App. 313

FREELAND v. STATE.

8 Div. 680.

Alabama Court of Appeals

February 8, 1949

Rehearing Denied March 8, 1949.

H. G. Bailey, of Boaz, for appellant.

A A. Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty Gen., for the State.

The following charges were refused to defendant:

'10. The court charges the jury that if any individual juror is not convinced of the defendant's guilt beyond a reasonable doubt and to a moral certainty, you should find the defendant not guilty.

'17. The court charges the jury that, before you can convict the defendant of any offense charged in the indictment, each and every one of you must be convinced of his guilt beyond a reasonable doubt and to a moral certainly after you have considered all the testimony. If any one of you, after considering all the evidence, have a reasonable doubt as to his guilt, you must find the defendant not guilty.'

HARWOOD Judge.

This appellant was indicted for, and by a jury convicted of murder in the second degree.

The appellant and deceased were among a number of men and women attending a dance being held at a private home in Marshall County.

The evidence shows conclusively that the appellant and deceased became embroiled in a physical difficulty inside the house, but were separated.

From this point on the evidence presented by the State, and that presented by the defense is in hopeless conflict.

The State's evidence is directed toward showing that shortly after this original difficulty the appellant attacked the deceased out in the yard and struck him with a knife. The deceased's body was found a few moments later in almost the identical spot where appellant had been seen to strike the deceased with his knife. The deceased was taken to a hospital where he died several hours later as a result of a stab wound in the left portion of his chest.

The evidence presented by the defense was directed toward showing that after their original difficulty the appellant and deceased met at a doorway and another scuffle ensued and they struggled out onto a porch. The appellant testified that he did not remember going out into the yard during this second struggle, but that when he got loose he returned inside the house and the deceased went into the yard. Appellant remained in the house until the dance ended. Appellant denied that he had a knife with him, or that he stabbed the deceased on this occasion.

Purely a question of fact was thus presented by this conflicting evidence, the true version of which was solely within the province of the jury to determine. It is apparent from their verdict that the jury saw fit to accept the evidence of the State as tending to establish the true picture of what occurred. The evidence in our opinion tended to abundantly justify the jury's verdict. This being so no error resulted in the court's refusal of appellant's written request for the general affirmative charge.

Appellant's counsel argues that this cause should be reversed because of the trial court's refusal to grant his motion for a continuance because of the absence of witnesses, and the court's later refusal to put the State upon showings for the witnesses.

In this connection the record shows the following:

'This cause coming on to be tried on the 19th day of November, 1947, which was the date set for the trial thereof, before his Honor Reuben H. Wright, the following proceedings were had and done, to-wit:

'After a call of the witnesses for the defendant:

'Mr. Bailey: Let the record show that these witnesses for the defendant have not been served but that summons have been issued for them. The defendant moves for continuance on account of the absence of George Wattles, Ross Goodwin and L. V. Reynolds. These witnesses are eye witnesses and are the defendant's main and sole main witnesses to the difficulty. This is the first call of this case. Defendant has called for the process of the Court to get the attendance of these witnesses. Attachments were issued for them and are not yet returned.

'The Court: Let the record show the defendant has twenty-three witnesses summoned and eleven responded to answer. A showing is admitted for one of them.

'The Court states that he will give you all the power of the Court to get the witnesses named George Wattles, Ross Goodwin and L. V. Reynolds. The Court instructs the sheriff now to call the sheriffs in the counties where they are to see if he can find them.

'Mr. Bailey: The defendant is forced into trial without answer as to the availability of these witnesses and without knowledge of the availability of the witnesses at this time, but the defendant has asked the process of the court to get the witnesses present at this time.

'The Court: Overrule the motion for continuance.

'Mr. Bailey: We except.

'This cause coming on to be tried, was heard on the 20th day of November, 1947 before his Honor Reuben H. Wright, special judge presiding, and a Jury, when the following proceedings were had and done, to-wit:

Evidence

'Mr. Bailey: Defendant moves now that we be permitted to have a showing for these witnesses: George Wattles and Ross Goodwin.

'Mr. Conway: We object to the showings.

'The Court: Sustained.

'Mr. Bailey: These witnesses were duly summoned on about the 7th of November. They were not here when the case was called. That we asked for the process for all the witnesses for the defendant. That we undertook ourselves to get these two witnesses. We have done our best. It is now stated in the presence of the Court that defendant has reliable information these witnesses will be here at 10:00. We ask for a showing and the Court refuses to give a showing.

'The Court: The State refuses.

'Mr. Bailey: The Court refuses to put these witnesses on a showing.

'The Court: You declined to put them on a showing on yesterday when this case was called. Defendant's counsel first asked for attachments for these two witnesses. The Court ordered attachments for them and instructed the sheriff to get them here. The defendant notified the sheriff not to serve the attachments; that they would undertake to get the witnesses here themselves, and that the witnesses promised to be here at 10:00 o'clock this morning.

'Mr. Bailey: We except to the Court's action. We now, on that motion offer the contents of our showings for these two witnesses.

'Mr. Conway: We object to his offer.

'The Court: Tender the showings to the State ans see what they say.

'Mr. Conway: We object to the showings.

'Mr. Bailey: We claim that due diligence has been used to get them here. If anybody ever tried, we have, and they promised to be here at 10:00 o'clock.

'The Court: The State declines to permit the showing. You undertook to get then here. It is your responsibility. I offered you all the processes of the Court to get these witnesses here.

'Mr. Bailey: We now ask for a continuance and ask permission to get them here. I might state that I made the statement that my man said he would try to get the witnesses here.

'The Court: You have been given the opportunity of all the processes of the Court and you declined it and took the responsibility on yourself.'

In connection with the portion of the record quoted above, we note that during the hearing of defendant's motion for a new trial in the court below, wherein the court's action in denying the defendant's motion for a continuance and his refusal to put the State on showings was among the grounds assigned in support of the motion for a new trial, the court in that hearing made the following statement to defendant's counsel:

'The Court: You recall that on the day the case was set for trial I passed the case for one day so you could get the witnesses George Wattles and Ross Goodwin. I told you we would issue attachments for them and get them for you. Thereafter the clerk and sheriff reported to me that you said you would undertake to get them yourself and not to issue of serve the attachments.'

The inference is clear from the record that on the day this case was called for trial the court declined defendant's motion to continue the case because of the absence of certain of defendant's witnesses. The inference is also clear that on this day defendant's counsel refused to put the State upon showings for these absent witnesses and asked for extraordinary compulsory processes to obtain their attendance....