Jarvis v. State

• Citation: 126 So. 127,220 Ala. 501
• Decision Date: 25 January 1930
• Docket Number: 1 Div. 527.
• Parties: JARVIS v. STATE.
• Court: Supreme Court of Alabama

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.

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; 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 accorded, a large discretionary power is given the court, as to putting the adverse party on a showing for such absent witness, or in granting an application for a continuance for the issue and execution of an attachment. The court is not bound to order attachment ex mero motu, on failure of a witness to appear in answer to summons; it is only after the witness is "in contempt," and the "propriety and necessity of the process is shown."

The United States Constitution Ann. (Corpus Juris System) 1924, p. 189; 16 C.J. p. 457 et seq., § 829 et seq.; Gilbert v. State, 2 Ala. App. 94, 57 So. 127, and authorities, and section 6, Constitution of Alabama, p. 25, extend to "ordinary process" or subp na for witnesses and proper showing therefor if absent and not in contempt. Childress v. State, 86 Ala. 77, 5 So. 775; Walker v. State, 117 Ala. 85, 23 So. 670; Winter v. State 123 Ala. 1, 10, 26 So. 949; Martin v. State, 125 Ala. 64, 28 So. 92.

The facts of the case of Morris v. State, 193 Ala. 1, 68 So. 1003, are not as those before us. Here, the defendant had the ordinary process of the court, and his appeal for the extraordinary process by attachment was denied when he had the benefit of the showing admitted by the solicitor, subject to legal exceptions, and the witness was not in contempt of court.

And in Sanderson v. State, 168 Ala. 109, 113, 53 So. 109, 110, the court observed:

"The opinion in the Childress appeal was written under the influence of the 'compulsory process' provision of the Constitution of 1875, which was identical with that of the Constitution of 1901, in that regard, and the reordination of the provision in the latter Constitution effected to impress it with the previous interpretation put upon it by this court in Childress Case. It will be observed that the court took a distinction between 'ordinary' compulsory process and 'extraordinary' compulsory process; the latter being instanced in the process of attachment. *** But when the inquiry is whether the right to extraordinary compulsory process has been denied or infracted, the discretion of the court to grant or refuse a continuance becomes an important factor. In the Childress Case this is so plainly set down as to require no restatement. So that in cases where the subp na has been served, and the witness has failed to appear as summoned, and application is made to the court to exert its extraordinary process-attachment-and to continue the cause, and the court refuses and puts the prosecution on a showing, by the accused, as to what the absent witness or witnesses would testify if present, the only matter of review on appeal is: Did the trial court abuse its discretion in the premises?" Caldwell v. State, 203 Ala. 412, 416, 84 So. 272; Cagle v. State, 211 Ala. 346, 100 So. 318.

The defendant having reduced to writing what he expected to prove by his several absent witnesses (including Mrs. J. S. Burel) and the solicitor for the state having "then stated to the court that he would admit them, subject to legal exceptions," moved the court for a continuance for "such reasonable time as to properly prepare the case for the defendant and to make further investigation as to the insanity of the defendant....