Thomas v. State, 6 Div. 809
| Decision Date | 30 January 1936 |
| Docket Number | 6 Div. 809 |
| Citation | 231 Ala. 606,165 So. 833 |
| Parties | THOMAS v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied March 5, 1936
Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler Judge.
Charles alias John, Thomas was convicted of murder in the first degree, and he appeals.
Affirmed.
Julian Skinner, of Birmingham, for appellant.
A.A Carmichael, Atty. Gen., and Jas. L. Screws and Wm. H. Loeb Asst. Attys. Gen., for the State.
The record discloses the trial and conviction of defendant by due process of law. No error appears in the record proper.
No bill of exceptions showing proceedings on the trial of the cause is presented.
A bill of exceptions, showing a motion for new trial, the grounds thereof, affidavits offered on the hearing, and the ruling thereon, is in the record.
The grounds of the motion were want of time for counsel appointed to represent defendant to properly prepare the cause for trial, and newly discovered evidence.
The indictment was returned May 13, 1935. Whether defendant was arrested before or after indictment does not appear.
On June 8, 1935, defendant, in open court, in person and by counsel, was duly arraigned, pleaded not guilty, and June 17th set for his trial. The trial was had on June 20th.
Affidavit of counsel discloses that the attorney first appointed to represent the defendant asked leave to withdraw, and present counsel was appointed two days before the trial; that the defense was an alibi; that witnesses on that issue were in North Carolina, and no sufficient time was given to properly investigate. The affidavit says the court's attention was called to lack of sufficient time while he was sounding his docket. It does not appear any motion for continuance was made, that the court was advised of the character of the defense, nor any reason given why the case should not be tried on the day set. It does not appear defendant did not know where he was when the killing occurred, with which he was charged; nor that former counsel had not been diligent, or failed to advise the new counsel of the results of his labors.
In this state of the record, it cannot be held the court erred in failing, of his own motion, to continue the case to a later date.
A new trial for newly discovered evidence must disclose two facts: First no lack of diligence in failing to procure the testimony offered on the motion; second, that the newly discovered evidence is material and would probably produce a different verdict.
The motion and amendment thereto were pending some six weeks.
The brief time to investigate before the trial may well be considered on the question of diligence.
But coming to the results of the investigation for purposes of a new trial, there was no evidence presented on the...
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McConico v. State
...court. We cannot hold that the trial court was in error for not continuing the case under these circumstances. See Thomas v. State, 231 Ala. 606, 165 So. 833 (1936); Dickerson v. State, 362 So.2d 1322 The appellant filed a pro se petition for writ of error coram nobis asserting, among other......
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Nichols v. State
...probably change the result. Washington v. State, 259 Ala. 104, 65 So.2d 704; O'Pryor v. State, 237 Ala. 13, 185 So. 374; Thomas v. State, 21 Ala. 606, 165 So. 833. Such a showing was not made here. Assuming, arguendo, that the evidence might have been admissible, it is beyond the province o......
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Reeves v. State, 7 Div. 826
...on the trial, all presumptions must be indulged in favor of the trial court. Error cannot be presumed." Thomas v. State, 231 Ala. 606, 607, 165 So. 833, 834 (1936). "When there is no showing to the contrary, the presumption is always in favor of correct action on the part of the trial judge......
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Washington v. State
...and competent, not merely cumulative, and will probably change the result. O'Pryor v. State, 237 Ala. 13, 185 So. 374; Thomas v. State, 231 Ala. 606, 165 So. 833. Such a showing is not made within the requirements of the rule. Only two witnesses were brought forth on the motion whom it is c......