Jarvis v. State, 1 Div. 527.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation126 So. 127,220 Ala. 501
Decision Date25 January 1930
Docket Number1 Div. 527.
PartiesJARVIS v. STATE.

126 So. 127

220 Ala. 501

JARVIS
v.
STATE.

1 Div. 527.

Supreme Court of Alabama

January 25, 1930


Appeal from Circuit Court, Mobile County; Claud A. Grayson, Judge.

Jack Jarvis was convicted of murder in the first degree, and he appeals. Affirmed. [126 So. 128]

Edward J. Grove, Francis J. Inge, and Arthur J. Kearley, all of Mobile, for appellant.

Charlie C. McCall, Atty. Gen., and Wm. P. Cobb, Asst. Atty. Gen., for the State.

THOMAS, J.

The indictment for homicide and conviction was for murder in the first degree.

The homicide was committed on the morning of July 19, 1928; defendant was arrested on the same day; the indictment was returned on October 11, 1928, arraignment and plea of not guilty on October 16th; and it appearing to the court that appellant was unable to employ an attorney, counsel was appointed for defendant on the following day. Cause was set and called for trial on October 23d, at which time it was made known to the court that one of defendant's counsel was ill, and the court appointed additional counsel; the latter stated he could not properly represent defendant without additional time, and moved for a continuance, and the court set the case over for the next day. At said time the counsel who was ill reported and stated he had only a week to prepare his defense; that he learned the history of defendant's family in Mississippi and Florida; that his mother and others in the line were insane, and that his mother's sister was insane, and that her brother had two sons insane, and her grandfather was insane; that these facts should be duly presented to the jury, and he (counsel) had not had time to do this. The court declined the motion for continuance. We find no obvious or gross abuse of discretion by the trial court in setting over the cause for trial and refusal to grant the motion of defendant's counsel for further time or for a continuance. Knowles v. Blue, 209 Ala. 27, 95 So. 481; Lutz v. Van Heynigen Brok. Co., 202 Ala. 234, 80 So. 72; Berthold, etc., & Co. v. Phalin Lumber Co., 196 Ala. 362, 71 So. 989; White v. State, 86 Ala. 69, 5 So. 674; [126 So. 129] Kelly v. State, 160 Ala. 48, 49, 49 So. 535; Spann v. Torbert, 130 Ala. 541, 30 So. 389.

The controlling decisions have been stated in McLaughlin v. Beyers, 175 Ala. 544, 57 So. 716, as follows:

"It was formerly held by this court that the granting or refusing of continuances was entirely within the discretion of the trial court, and that its exercise was 'beyond the jurisdiction of the appellate court to control or revise.' Humes v. O'Bryan, 74 Ala. 64, 78 Campbell v. White, 77 Ala. 397. Later it was said that 'the continuance of a case is within the discretion of the trial court, and the exercise of this discretion will not be reviewed on appeal, except in a case where it is shown that the court has abused the discretion vested in it.' Spann v. Torbert, 130 Ala. 541 30 So. 389. Still later it has been declared that the action of the trial court will not be revised on appeal unless a gross abuse of the discretion is shown. Kelly v. State, 160 Ala. 48, 49 So. 535. It seems, however that in criminal cases the constitutional right of the defendant to have compulsory process for his witnesses may sometimes be so involved in the question as to nullify the general rule as to discretion. Rodgers v. State, 144 Ala. 32, 40 So. 572."

And the opportunity for process or a showing was thus adverted to in Allen v. Bannister, 210 Ala. 264, 97 So. 820, as follows:

"Defendant moved for a continuance and then asked to be allowed to make a showing for two absent witnesses. Exceptions were reserved to the court's adverse rulings in both instances. Stating the reason for its refusal to wait for a showing, the court observed that the cause had been set for trial on Tuesday of the then current week, and was called for trial on Thursday; that defendant had been in attendance upon the court since Tuesday; and, in effect, that the showing should have been ready. In these rulings we find no abuse of the court's discretion, and hence no cause for a reversal."

In the case of Rodgers v. State, 144 Ala. 32, 34, 40 So. 572, 573, it is declared:

"It is next insisted that the court erred to the injury of the appellant in 'not putting the state upon a showing as to what defendant expected to prove by the absent witnesses English and Cuthbert.' It is true that, although the matter of continuance is, as a general rule, within the discretion of the trial court, and will not be reviewed, yet the courts will not allow this rule to operate to the extent of depriving a defendant of the benefits of the constitutional guaranty 'to have compulsory process for obtaining witnesses in his favor.' Walker v. State, 117 Ala. 85, 88, 23 So. 670; Hill v. State, 72 Miss. 527, 17 So. 375."

In the instant case the fact was that Mrs. Burel was duly served with process before the request was made for attachment and motion for continuance in the absence of a showing. And in Sanders v. State, 181 Ala. 35, 50, 61 So. 336, 341, are the pertinent observations that in order to bring the matter properly before this court, the defendant is required to make proper motions and exceptions in the court below, "so that the record may show whether or not he has been deprived of a substantial right," Rodgers v. State, 144 Ala. 34, 40 So. 572, and to show whether the witness "can be reached and his attendance secured by compulsory process, and whether or not the issuance of the process would be futile," and "whether or not such evidence would be relevant or material, and, therefore, whether or not the process would be of any service to the accused."

In Amendment 6 to the Constitution of the United States are provisions, as in our section 6 of the Constitution of Alabama, to the effect that in criminal prosecutions the accused "be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor," etc. The right of attachment is not absolute and unqualified under all circumstances, but an application for continuance for execution of attachment is addressed largely to or rested in the sound discretion of the court, dependent upon the facts. 16 C.J. pp. 457, 458, §§ 460, 829, 830, 850, 854, and 855; Richardson v. State, 191 Ala. 21, 24, 68 So. 57; Sanders v. State, 181 Ala. 35, 49, 51, 61 So. 336; Gilbert v. State, 2 Ala. App. 94, 57 So. 127. That is to say, in the exercise of the right of attachment and extraordinary compulsory process to compel personal attendance, after ordinary compulsory process of subp na is...

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22 practice notes
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...its discretion in the premises. Knowles v. Blue, 209 Ala. 27, 95 So. 481; Sanderson v. State, 168 Ala. 109, 53 So. 109; Jarvis v. State, 220 Ala. 501, 126 So. 127, and authorities; Richardson v. State, 191 Ala. 21, 68 So. 57; Webb v. State, 135 Ala. 36, 33 So. 487; Bryant v. State, 185 Ala.......
  • Carroll v. State, 6 Div. 75
    • United States
    • Alabama Court of Criminal Appeals
    • January 16, 1979
    ...show insanity by family history has the duty of showing that the evidence was within the exception to the hearsay rule. Jarvis v. State, 220 Ala. 501, 126 So. 127 A non expert witness cannot testify to the mental condition of a person until it has been shown that he has an intimate acquaint......
  • Beauregard v. State, 2 Div. 237
    • United States
    • Alabama Court of Criminal Appeals
    • March 6, 1979
    ...was within its discretion in denying the motions for a continuance. Peterson v. State, 231 Ala. 625, 166 So. 20 (1936); Jarvis v. State, 220 Ala. 501, 126 So. 127 (1930); Campbell v. State, 257 Ala. 322, 58 So.2d 623 (1952); Veith v. State, 48 Ala.App. 688, 267 So.2d 480 (1972); Payne v. St......
  • Norris v. State, 8 Div. 582.
    • United States
    • Supreme Court of Alabama
    • June 28, 1934
    ...action thereon will not be here reviewed in the absence of any abuse thereof. Bell v. State, 227 Ala. 254, 149 So. 687; Jarvis v. State, 220 Ala. 501, 126 So. 127. As to the absent witnesses who had been subp naed, the record discloses they were not present when the case was called, and the......
  • Request a trial to view additional results
22 cases
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...its discretion in the premises. Knowles v. Blue, 209 Ala. 27, 95 So. 481; Sanderson v. State, 168 Ala. 109, 53 So. 109; Jarvis v. State, 220 Ala. 501, 126 So. 127, and authorities; Richardson v. State, 191 Ala. 21, 68 So. 57; Webb v. State, 135 Ala. 36, 33 So. 487; Bryant v. State, 185 Ala.......
  • Carroll v. State, 6 Div. 75
    • United States
    • Alabama Court of Criminal Appeals
    • January 16, 1979
    ...show insanity by family history has the duty of showing that the evidence was within the exception to the hearsay rule. Jarvis v. State, 220 Ala. 501, 126 So. 127 A non expert witness cannot testify to the mental condition of a person until it has been shown that he has an intimate acquaint......
  • Beauregard v. State, 2 Div. 237
    • United States
    • Alabama Court of Criminal Appeals
    • March 6, 1979
    ...was within its discretion in denying the motions for a continuance. Peterson v. State, 231 Ala. 625, 166 So. 20 (1936); Jarvis v. State, 220 Ala. 501, 126 So. 127 (1930); Campbell v. State, 257 Ala. 322, 58 So.2d 623 (1952); Veith v. State, 48 Ala.App. 688, 267 So.2d 480 (1972); Payne v. St......
  • Norris v. State, 8 Div. 582.
    • United States
    • Supreme Court of Alabama
    • June 28, 1934
    ...action thereon will not be here reviewed in the absence of any abuse thereof. Bell v. State, 227 Ala. 254, 149 So. 687; Jarvis v. State, 220 Ala. 501, 126 So. 127. As to the absent witnesses who had been subp naed, the record discloses they were not present when the case was called, and the......
  • Request a trial to view additional results

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