State v. Brown
| Decision Date | 31 May 1921 |
| Docket Number | 6 Div. 910 |
| Parties | STATE v. BROWN. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 21, 1921
Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.
John Brown, a life convict, was injured in the mines of the Montevallo Mining Company while being worked therein as a convict, and brought his suit for damages for the injuries. When the case was set for trial, his attorneys brought habeas corpus ad testificandum, and from an order directed to the warden general to produce John Brown to testify in his case the State appealed, the defendant in the damage suit joining in the appeal. Reversed and remanded, with directions.
Harwell G. Davis, Atty.Gen., and Nesbit & Sadler, of Birmingham, for appellants.
J.L Peters, of Columbiana, and Black & Harris, of Birmingham, for appellee.
This is an appeal from an order of one of the circuit judges of Jefferson county issuing a writ of habeas corpus ad testificandum directing the state warden general to produce one John Brown, a convict serving a life sentence in the penitentiary, as a witness in his own behalf in civil suit for damages against the Montevallo Mining Company. The important issue presented by the record is the authority of the circuit judge to issue the writ.
The attendance of witnesses restrained of their liberty may generally be compelled by the issuance of a writ of habeas corpus ad testificandum directed to the officer or person in whose custody or control the witness is. The writ is issuable at the discretion of the court. 3 Wigmore on Evidence, § 2199; 1 Greenleaf on Evidence, § 312; Underhill on Criminal Evidence, § 259.
Sections 6559-6561 and 7890 of the Criminal Code of 1907, provide for obtaining the testimony of convicts both in civil and criminal cases, and these sections, though section 7890 is not in juxtaposition with the other three sections, all relate to one subject, and must be construed together. Hatchett v Billingslee, 65 Ala. 16.
These sections provide that the testimony of a convict may be obtained on deposition, except where the convict is a witness for the state in a criminal case, and the state is unable to secure other evidence of the facts. This section (6560) limits the right of the state to compel attendance of a convict as a witness to criminal cases, and by unmistakable inference deprives the state of such a privilege in a civil suit.
The court will not indulge the absurd presumption that the Legislature intended to deprive the state of such a right and permit it to be exercised by a convict, one who has been adjudged guilty of violating the laws of the land. 25 R.C.L p. 1019, § 257. This exception in favor of the state to the rule that such testimony must be secured on deposition was compelled by that provision of section 6 of the Constitution of 1901, giving an accused the right to be confronted by the witnesses against...
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