Sanderson v. State

• Decision Date: 02 June 1910
• Citation: 53 So. 109,168 Ala. 109
• Parties: SANDERSON v. STATE.
• Court: Alabama Supreme Court

53 So. 109

168 Ala. 109

SANDERSON v. STATE.

Supreme Court of Alabama

June 2, 1910

Appeal from Law and Equity Court, Madison County; Tancred Betts Judge.

William Sanderson was convicted of assault and battery, and he appeals. Affirmed.

Simpson Mayfield, and Sayre, JJ., dissenting.

The bill of exceptions sets out that the case was originally set for trial on October 14, 1909; but, the defendant failing to answer, his bail was declared forfeited, and an alias capias was issued for his rearrest, returnable instanter, and at the instance of the plaintiff's counsel attachments were issued for four witnesses, naming them, each of whom had been previously served with a subp na to attend by the sheriff and said attachments were made returnable on the 21st day of October, when the case was again reset for trial. On that day the case was called, and each witness called and found absent. It appeared that the sheriff had not executed the attachment, and had made no return whatever on the same. The witnesses not being present in court, the defendant moved the court to continue the cause or postpone the trial of it which motion was overruled, and the defendant was directed to prepare a showing for these witnesses. The defendant then again moved the court to continue postponing the trial until the witnesses could be attached and brought into court, upon the ground that under the Constitution he had a right to compulsory process to compel the attendance of his witnesses, and that there had been no effort made to execute such attachment. The court overruled this motion, and the defendant prepared a showing, but before submitting it to the solicitor again moved the court for compulsory process to enforce the attendance of his witnesses, upon the ground that there had been no execution of the attachment already issued, and no attempt made to execute same, and no return made by the sheriff thereon, which motion the court overruled. The solicitor thereupon admitted the showing.

The following is the oral charge of the court, which is excepted to: "Charles Strong, as mayor of the town of Madison, had a right, with or without a warrant, to arrest the defendant for a public offense committed in his presence, and to summon any citizen to his aid. Even a private citizen has a right to arrest, with or without a warrant, for an offense committed in his presence."

The following charges were refused to the defendant: (1) "If the jury believe the evidence in this case, they must find the defendant not guilty." (2) "I charge you that, as a matter of law, under the evidence in this case, Charles Strong had no right in law to arrest the defendant, and the defendant had the right to resist such arrest, or attempt to arrest him." (4) "If the difficulty between Charles Strong and defendant occurred outside of the corporate limits of the town of Madison, you must acquit the defendant." (5) "The attempt of Charles Strong to arrest the defendant was unwarranted and illegal, and the defendant had a right to resist such attempted arrest." (7) "The defendant had a right to resist Charles Strong, unless he advised the defendant that he was an officer, and what charge he was attempting to arrest the defendant on."

S. S. Pleasants, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

McCLELLAN J.

The right of a defendant in a criminal prosecution "to have compulsory process for obtaining witnesses in his favor" (Const. 1901, § 6) was thus explained and defined in Childress v. State, 86 Ala. 77, 83, 84, 5 So. 775, 777: "The object and meaning of the constitutional guaranty is that the court will exercise its powers, by the processes usual and known to the law, to compel the attendance of witnesses on behalf of the accused. It does not operate to take from the court the discretion as to granting or refusing continuances, or the authority to adopt proper means for ascertaining whether an application for a continuance is made with the view to obtaining a fair trial, or for the mere purpose of delay. The defendant had previously obtained the issuance of subp nas for his witnesses, which is the ordinary preliminary process to secure their attendance. Extraordinary compulsory process, such as attachment, is not resorted to, until the witness has placed himself in contempt, and the propriety and the necessity of the process is shown."

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. It is evident, consistent with the distinction taken, that the denial or impairment of the right to ordinary compulsory process immediately violates the constitutional guaranty, provided of course the accused is not negligent in the premises. 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?

While not expressing the rule in the exact form stated, the following of our decisions support the conclusion, when read in the light of the facts presented in each: Winter v. State, 123 Ala. 1, 26 So. 949; Martin v. State, 125 Ala. 64, 28 So. 92; Kilgore v. State, 124 Ala. 24, 27 So. 4; Davis v. State, 92 Ala. 20, 9 So. 616; Huskey v. State, 129 Ala. 94, 29 So. 838.

The case of Walker v. State, 117 Ala. 85, 23 So. 670 cited for appellant, has been examined. It is said in that case that no convenience of the court nor condition of the docket can rightfully justify the denial of the right of the accused to the constitutional guaranty under consideration. That is obviously a sound pronouncement, for both conditions relate to matters wholly without the power of, or rightful influence against, the accused; but it is clear that this court did not intend to qualify the rule of discretion, in respect of continuances, of the trial courts stated in the same opinion. Indeed, in that case--and the observations there made are immediately pertinent to this case as will later appear--the court's declination to continue the...