Sanderson v. State

CourtAlabama Supreme Court
Writing for the CourtMcCLELLAN, J.
Citation53 So. 109,168 Ala. 109
Decision Date02 June 1910
PartiesSANDERSON v. STATE.

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"...

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22 practice notes
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • 6 October 1932
    ...the trial court palpably or grossly abused 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......
  • Jarvis v. State, 1 Div. 527.
    • United States
    • Supreme Court of Alabama
    • 25 January 1930
    ...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: opinion in the Childress appeal was written under the influence of the 'compulsory process' provis......
  • Peterson v. State, 3 Div. 153
    • United States
    • Supreme Court of Alabama
    • 30 January 1936
    ...659, 114 So. 39; Cagle v. State, 211 Ala. 346, 100 So. 318; [166 So. 21] Morris v. State, 193 Ala. 1, 68 So. 1003; Sanderson v. State, 168 Ala. 109, 53 So. 109. That is to say, the time allowed counsel for defendant to prepare and present a defense was sufficient under the circumstances of ......
  • Castona v. State, 1 Div. 341
    • United States
    • Alabama Court of Appeals
    • 20 April 1920
    ...a continuance in a criminal case on account of the absence of a witness lies within the discretion of the trial court. Sanderson v. State, 168 Ala. 109, 53 So. 109; Gilbert v. State, 2 Ala.App. 94, 57 So. 127. And it was not error for the court to require the defendant to make a showing as ......
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22 cases
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • 6 October 1932
    ...the trial court palpably or grossly abused 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......
  • Jarvis v. State, 1 Div. 527.
    • United States
    • Supreme Court of Alabama
    • 25 January 1930
    ...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: opinion in the Childress appeal was written under the influence of the 'compulsory process' provis......
  • Peterson v. State, 3 Div. 153
    • United States
    • Supreme Court of Alabama
    • 30 January 1936
    ...659, 114 So. 39; Cagle v. State, 211 Ala. 346, 100 So. 318; [166 So. 21] Morris v. State, 193 Ala. 1, 68 So. 1003; Sanderson v. State, 168 Ala. 109, 53 So. 109. That is to say, the time allowed counsel for defendant to prepare and present a defense was sufficient under the circumstances of ......
  • Castona v. State, 1 Div. 341
    • United States
    • Alabama Court of Appeals
    • 20 April 1920
    ...a continuance in a criminal case on account of the absence of a witness lies within the discretion of the trial court. Sanderson v. State, 168 Ala. 109, 53 So. 109; Gilbert v. State, 2 Ala.App. 94, 57 So. 127. And it was not error for the court to require the defendant to make a showing as ......
  • Request a trial to view additional results

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