Thomas v. State

• Decision Date: 07 September 1916
• Docket Number: 6 Div. 76
• Parties: THOMAS v. STATE.
• Court: Alabama Court of Appeals

73 So. 558

15 Ala.App. 408

THOMAS v. STATE.

6 Div. 76

Court of Appeals of Alabama

September 7, 1916

Rehearing Denied Oct. 19, 1916

Appeal from Criminal Court, Jefferson County; A.H. Alston, Judge.

Mack Thomas was convicted of assault with intent to murder, and he appeals. Reversed and remanded.

R.L Williams, of Birmingham, for appellant.

W.L Martin, Atty. Gen., and H.G. Davis, Asst. Atty. Gen., for the State.

BROWN J.

On re-examination of the question presented in this case, we hold that Const.1901, § 6, guaranteeing to the accused in a criminal prosecution "compulsory process for obtaining witnesses in his favor," not only entitles him to the ordinary preliminary process of subpoena, but, on proper showing of due diligence exercised by him in his own behalf he is entitled to the extraordinary process of attachment. These are the processes "usual and known to the law" to compel the attendance of witnesses. Bush v State, 168 Ala. 81, 53 So. 266; Childress v. State, 86 Ala. 84, 5 So. 775; Walker v. State, 117 Ala. 85, 23 So. 670. And we approve what was said in Graham v. State, 50 Ark. 161, 6 S.W. 721:

" 'Compulsory process for obtaining witnesses' [in his favor] means the right to invoke the aid of the law to compel the personal attendance of witnesses at the trial, when they are within the jurisdiction of the court. It is a substantive right, a real right, and not an illusory sham to be satisfied by the issue of process, which is to be rendered ineffectual by hastening on to immediate trial. A reasonable opportunity to make the process effective must be afforded, else what the framers of the Constitution termed 'a right to be enjoyed' by the accused, is only a mockery to vex." Volume 2, Words and Phrases, 1377.

And by the Supreme Court of this state:

"No convenience of the court, nor any condition of the docket of the cases for trial, can authorize the denial of this right of the accused, guaranteed to him by the Constitution of the state." Walker v. State, 117 Ala. 88, 23 So. 670.

The case of Sanderson v. State, 168 Ala. 109, 53 So. 109, as reported is misleading, and the first headnote, when referred to the conclusion of a majority of the court, is incorrect. A majority of the court in that case did not concur in the opinion of Justice McClellan on this question, but held to the contrary view. What was said in the first paragraph of the opinion in Brand v. State, 69 So. 380, on the subject was dictum, and is here disapproved, but the following utterance in that case is reaffirmed:

"From the facts stated above, it is clear that the accused had the full benefit of the provision of the Constitution. He was granted the extraordinary compulsory process, as well as the ordinary process, for securing the attendance of his witnesses. *** The Constitution does not authorize the court to use its extraordinary process to arrest and incarcerate a witness without bail for the benefit of the accused, but it prohibits such a course.

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