Harroway v. State ( 1922 )

BRICKEN, P. J.

The defendant was- indicted, tried, and convicted of the offense of making whisky. He appeals from the judgment of conviction, and here insists upon three separate propositions to effect a reversal of the judgment.

The first insistence is that the court erred in not granting him a continuance on account of the absence of one J. O. Huckaby, who was at home sick and was unable to attend court. The granting or refusing of an application for a continuance is a matter of discretion of the trial court, and, unless it clearly appears that a gross abuse of such discretion has been indulged, the ruling of the court thereon will not- be disturbed. In the instant case no such abuse of discretion appears. To the contrary, the record shows that the witness Huckaby was summoned as a witness for the state, and when the case was first called on December 8th, it was discovered that said Huckaby was sick and not present in court, but the state found that it would be ready for trial without this witness; that thereupon the defendant, for the first time, asked for a summons for the witness Huckaby; this summons was not served for the reason that it had been made known to the court that Huckaby was sick and could not attend court. All this shows that there was no abuse of the discretion vested in the court in matters of this sort, for it clearly appears that the defendant failed to manifest due diligence in summoning said witness; and, too, it may be said that it more clearly appears his failure to ask for a summons for this witness until it was shown that he was sick and could not attend court was merely a subterfuge upon the part of the defendant, and this very properly failed to meet the approbation of the trial court.

The next insistence of error is the refusal of the court to give the general affirmative charge requested by defendant in writing. This insistence is equally without merit. The evidence was in conflict, and the court properly submitted the guilt or innocence of the defendant to the jury. There was ample evidence upon which to base the verdict rendered.

The third and last insistence of error is based upon several rulings of the court upon the testimony relating to the alleged flight of defendant. The defendant without objection was permitted to explain his alleged flight, and testified in this connection that his father-in-law from Mississippi was here; that he met him at his cousin Jack Whitfield’s, and that he went home with him to Mississippi, where he got a job, and then sent after his people; that he stayed out there a year, and that he did not even know that the officers were after him when he left; and that he returned to Alabama of his own accord. He thus had the benefit of the rule which permits an accused to explain his alleged flight, and the several attempts to prote his self-serving declarations and conduct were not permissible, and the court properly so held. The case of Goforth v. State, 183 Ala. 66, 63 South. 8, cited by appellant, is not applicable here.

The record appears free from error, and, as the entire trial proceeded without any erroneous ruling of the court which could prejudice the substantial rights of the defendant, the judgment of the circuit court appealed from is affirmed.

Affirmed.