Wade v. State, 2 Div. 72

• Decision Date: 13 March 1973
• Docket Number: 2 Div. 72
• Citation: 274 So.2d 626,49 Ala.App. 601
• Parties: John Henry WADE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 626

274 So.2d 626

49 Ala.App. 601

John Henry WADE v. STATE.

2 Div. 72.

Court of Criminal Appeals of Alabama.

March 13, 1973.

Romeo & Swatek, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and John A. Yung IV, Asst. Atty. Gen., for the state.

HARALSON, Supernumerary Circuit Judge.

The appellant was tried and convicted for burglary in the second degree, Title 14, § 86, and sentenced by the court to imprisonment in the penitentiary for 7 years.

It appears from the record that on July 17, 1970, a warrant was sworn out before Hon. G. H. Stacy, Judge of the County Court of Bibb County, by J. B. Burson charging the appellant with burglary and that he was arrested and placed in jail on August 4, 1970. On August 5, 1970, he was taken before Judge Stacy at which time he requested a preliminary hearing and counsel to represent him, but he was advised that no lawyer was available at the time by the court; however, bond was set and immediately made by the appellant and he was released from custody pending the action of the grand jury. On September 21, 1970, he was indicted by the grand jury and arraigned on February 5, 1971. At this time an attorney was appointed to represent him and trial was had on February 15, 1971.

The appellant contends that he was denied his constitutional rights under due process of law by being denied a preliminary hearing. Our courts have dealt with this question and held that the constitutional rights of a defendant are not violated by not giving him a preliminary hearing. In the case of Queor v. State, 278 Ala. 10, 174 So.2d 687, the Supreme Court stated:

'Point is made that appellant had no preliminary hearing. As to this, the record is silent. But even if there was no preliminary hearing, such fact would have no bearing on the validity of the indictment and subsequent proceedings incident thereto, i.e., the arraignment and trial.' See authorities cited in that case and Grace v. State, 44 Ala.App. 682, 220 So.2d 259.

Therefore, appellant's motion to quash the indictment based upon that ground was overruled by the court without error.

On the day of the trial the appellant moved for a continuance on the ground that he had not had an opportunity to confer with his court appointed attorney and to subpoena witnesses for the trial. From a careful reading of the record, the court is of the opinion that the case was fully developed both from the viewpoint of appellant and the State by the witnesses who appeared and testified. No references were made to the fact that the appellant needed further witnesses to properly present his defense, with the exception of some mention of two doctors who had not been subpoenaed, but who apparently would have been subject to the process of the court had the appellant insisted upon it during the trial. Further, it is not clear to what the doctors would have testified. At any rate it does not appear that the appellant exhausted his efforts to secure their testimony by compulsory process if necessary after the trial began.

It is familiar law that the continuance of a case rests in the second discretion of the court, subject to review only for gross abuse of discretion. Henry v. State, 46 Ala.App. 175, 239 So.2d 318; Burton v. State, 43 Ala.App. 249, 187 So.2d 808.

From a consideration of the record we think counsel for appellant had sufficient time (ten days) to prepare his defense, and under the circumstances that the appellant's constitutional rights were not violated.

In brief appellant urges that his rights were prejudiced by a remark by the prosecuting attorney in his argument to the jury and by certain comments of the court with regard to a ruling on an objection. No objection or motion was made by appellant to any of the matters complained of. Matters not objected to in the trial court cannot be considered for the first time on appeal, since a review on appeal applies only to rulings invoked at nisi prius. Smith v. State, 40 Ala.App. 600, 119 So.2d 202; Thompson v. State, 44 Ala.App. 414, 211 So.2d 505.

On the night of the alleged burglary, witness James Lawrence, Chief of Police of Centreville, testified that he, along with Police Officer J. B. Burson,...