Opinion
8 Div. 374.
May 9, 1944.
Appeal from Morgan County Court; J.H. Crow, Jr., Judge.
Clifford West was convicted of violating the prohibition laws, and he appeals.
Affirmed.
Powell Powell, of Decatur, for appellant.
In all criminal prosecutions accused has legal right to compulsory process for obtaining witnesses in his behalf. Const. 1901, § 6; Const. U.S. Arts. 6, 14; Thomas v. State, 15 Ala. App. 408, 73 So. 558. Accused is entitled to reasonable period to prepare his defense, and such right is a material and substantial one. Here defendant was put to trial within less than 30 days after arrest, and was entitled to at least 30 days. 14 Am.Jur. 853, § 131; 22 C.J.S., Criminal Law, page 734, § 478; Reed v. State, 94 Fla. 32, 113 So. 630.
Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.
Where there is evidence tending to support a criminal accusation the case should go to the jury, and the affirmative charge is properly refused. Morris v. State, 144 Ala. 81, 39 So. 973; Daniels v. State, 243 Ala. 675, 11 So.2d 756; Selvage v. State, 29 Ala. App. 371, 196 So. 163. Granting or refusing application for continuance is matter within discretion of court. Lindsay v. State, 15 Ala. 43; Wells v. State, 20 Ala. App. 240, 101 So. 624; Wilson v. State, 243 Ala. 671, 11 So.2d 568; Hawkins v. State, 29 Ala. App. 221, 195 So. 762; Id., 239 Ala. 532, 195 So. 765. It is not error to deny application for continuance where absent witness is not within jurisdiction of court. Gaines v. State, 146 Ala. 16, 41 So. 865; Curtis v. State, 9 Ala. App. 36, 63 So. 745. Forcing a defendant to trial within 16 days after his crime is not such rapidity as to require a reversal. Morris v. State, 193 Ala. 1, 68 So. 1003: McAdams v. State, 216 Ala. 659, 114 So. 39; Powell v. State, 224 Ala. 540, 141 So. 201; Id., 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.
Appellant was convicted of the offense of violating the prohibition laws by selling whiskey.
The case is in its elements very simple. The State's evidence was direct to the effect that appellant was guilty as charged. That for the appellant — he did not testify, himself — was to a contrary effect. There are no exceptions to rulings on the admission or rejection of testimony that seem worthy of mention.
Appellant objected to going to trial, and moved for a continuance, on the ground that some of his witnesses were not present. But in overruling his motion the learned trial court stated — after giving his reasons — "I am going to hold that you have not used due diligence in getting your case ready, and order the case to proceed to trial."
In addition to, and supporting, the above, some principles which the record shows applicable here, will be set down, viz.:
(1) The granting or refusing an application for a continuance is a matter within the discretion of the court, and unless the discretion was abused, refusing motion will not be disturbed. Wells v. State, 20 Ala. App. 240 101 So. 624. We fail to observe any abuse of the trial court's discretion, here.
(2) It is not error for the court to deny an application for a continuance where absent witnesses are not within the jurisdiction of the court. Gaines v. State, 146 Ala. 16, 41 So. 865; Curtis v. State, 9 Ala. App. 36, 63 So. 745.
(3) Forcing a defendant to trial within 30 days of the institution of the prosecution is not error. Morris v. State, 193 Ala. 1, 68 So. 1003.
There was no error in overruling appellant's application for a continuance, here.
In view of what has been said hereinabove there was of course no error in refusing to give to the jury at appellant's request the general affirmative charge to find in his favor.
We have endeavored to perform our full duty under the Statute, Code 1940 Title 15, Sec. 389, but find no error for which the judgment should be reversed.
It is affirmed.
Affirmed.