Starr v. State , 25 Ala. 49 ( 1854 )

CHILTON, C. J.- —

-1. We have uniformly held, that the granting or refusing of continuances is a matter resting in the sound discretion of the primary courts, and as such not revisable on error in this court. That the solicitor was put upon the admission of what the defendant’s absent witnesses would swear, was for the defendant’s benefit; and he ought not to be heard to complain, that the court, in the exercise of a discretionary power, superadded a condition for his advantage, which it might have omitted altogether, without committing an error for which its judgment could have been reversed.

2. As to the effect of the admissions by the State, we think it was for the court, in the exercise of its discretion, to declare whether the admission should go to the facts proposed to be proved, or merely that the witness, if present, would swear to what the affidavit states he would. We will not undertake to say, that there may not be oases, where- the court should extend the admission so as to make it conclusive; but in most cases, it will subserve the purposes of justice, merely to require the admission that the witnesses, if present, would swear to what is stated, leaving the proof to depend upon the credit due to the witnesses, and subject to be rebutted. The admission in the present case was of this character, and not that the facts were absolutely true as stated in the affidavit. There was, therefore, no error in refusing the charge prayed for by the defendant in the court below.

3. As to the declarations of Starr, made when Randolph was examining the brick: We entertain no doubt that they were properly excluded. There was no question as to the fact whether he claimed the brick as his own or held in right of another. The question was, whether he had bought them from John, the slave of Randolph. If the accused could thus make evidence for himself, by declarations as to the manner in which he acquired the property, it would be difficult to determine where such proof should end. Besides, the declarations here proposed go much beyond any case we have seen predicated upon the doctrine of being portion of the res gestee. They are not merely explanatory of the possession, but go on to show how the brick were acquired — that is, the defendant seeks to prove a past transaction by his declarations, thus deducing a title to the brick as having obtained them from Stewart & Wharton’s brick-yard. What was the thing done, of which these declarations can be considered part? Randolph was examining the brick. It does not appear that he had made any charge against Starr, in reference to the brick, requiring a response lest silence should be construed into an admission of the charge or a circumstance adverse to him. Nothing of this kind is stated; but the declarations rest solely upon the ground that a party in possession of property may, by his declarations, show how he had acquired it. The rule has never been extended thus far. See Perry v. Graham, 18 Ala. 822, and the cases there cited.

There was no error in the several rulings of the court, and the judgment is affirmed.