Palmer v. State
| Decision Date | 16 December 1909 |
| Citation | 165 Ala. 129,51 So. 358 |
| Parties | PALMER v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Marion County; C. P. Almon, Judge.
Fayette Palmer appeals from a conviction. Reversed and remanded.
A. H Carmichael and E. B. & K. V. Fite, for appellant.
Alexander M. Garber, Atty. Gen., for the State.
We cannot say that the defendant was denied any constitutional right when the court refused to continue or postpone his trial in order that some of his witnesses might be brought into court by attachment. The Constitution provides that in all criminal prosecutions the accused has a right to have compulsory process for obtaining witnesses in his favor. This constitutional assurance is something more than an empty collocation of words. It secures an invaluable right, and its purpose is not to be served by an order for compulsory process made at a time and under conditions which indicate that such process cannot be executed in time to bring the witness to the trial. On the other hand, it is not to be so construed in practice as to permit the accused to secure delay by applying for process at the last moment. To fasten error upon the trial court, it must be made to appear that the application was seasonably made, and accompanied by a showing as to what the absent witness is expected to swear in order that the court may judge of its materiality. In the case at bar, the defendant made his application for process after the state had announced ready for trial. This was upon the second juridical day of the week, and, while defendant's counsel stated to the court that the witnesses for whom process was desired were material witnesses for the defendant, it was not made to appear what the evidence was which counsel deemed material, nor that the application for process might not, in the exercise of diligence, have been made in time to secure its execution and the presence of the witnesses at the trial. This is in accord with what was said in Walker v. State, 117 Ala. 85 23 So. 670, as we understand that case. Defendant had process, returnable instanter, as was his right; and there was no error in refusing to continue or postpone the trial in order to insure its execution. Under the circumstances, the motion for delay was addressed to the sound discretion of the court.
Defendant was indicted for incestuous sexual intercourse or adultery with his niece. It appeared in evidence that this niece was somewhat more than 15 years of age at the time of the trial and that she had given birth to a child about 10 months previously. The evidence for the state showed that for a considerable period covering the time when in the natural order of things the child had been begotten defendant and his niece lived together in the house with the defendant's parents, aged people. It was competent for the state to show that at that time no one other than the defendant, his niece, and her grandparents lived in the house, as showing opportunity for the crime, and as tending in some measure to exclude the probability that some other man had access to the woman.
The age of Rainey Palmer, the niece, was a fact of importance; for if she was over the age of consent at the time of the act or acts of sexual intercourse to which she deposed, she was particeps criminis, if she consented, and her credibility became thereby so affected that no conviction could be had on her uncorroborated testimony. But the circumstances under which the question to Creacy Palmer, the mother of Rainey Palmer, "How long was it after you were married until Rainey Palmer was born?" do not show clearly that the question was asked for that purpose, nor had the date of Creacy Palmer's marriage been so fixed, nor was the court given to understand the defendant's purpose to so fix it, as that the answer to the question would have afforded a point...
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