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Attorney(S)
  • Charles M. Ingrum, Opelika, for appellant. Where court denies an indigent defendant a continuance because duly and lawfully subpoena material witnesses are not present at trial, the court should allow the defendant the opportunity to make a showing by affidavit as to what said material witnesses would testify. Powell v. State, 39 Ala. App. 246, 100 So.2d 38; Clark v. State, 36 Ala. App. 159, 57 So.2d 375; Thomas v. State, 15 Ala. App. 408, 73 So. 558; Pausens v. State, 63 Ala. App. 113, ___ So. ___. MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State. The matter of continuance in a criminal case is addressed to the trial court's sound discretion, the exercise of which will not be disturbed unless clearly abused. Divine v. State, 279 Ala. 291, 184 So.2d 628; Peaden v. State, 275 Ala. 72, 152 So.2d 136.
Judges
  • CATES, Judge.
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Citation Codes
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citation codes
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Attorney(S)
  • Charles M. Ingrum, Opelika, for appellant. Where court denies an indigent defendant a continuance because duly and lawfully subpoena material witnesses are not present at trial, the court should allow the defendant the opportunity to make a showing by affidavit as to what said material witnesses would testify. Powell v. State, 39 Ala. App. 246, 100 So.2d 38; Clark v. State, 36 Ala. App. 159, 57 So.2d 375; Thomas v. State, 15 Ala. App. 408, 73 So. 558; Pausens v. State, 63 Ala. App. 113, ___ So. ___. MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State. The matter of continuance in a criminal case is addressed to the trial court's sound discretion, the exercise of which will not be disturbed unless clearly abused. Divine v. State, 279 Ala. 291, 184 So.2d 628; Peaden v. State, 275 Ala. 72, 152 So.2d 136.
Judges
  • CATES, Judge.
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Smart Summary

Factual and Procedural Background

Jack D. Stovall was convicted of grand larceny involving an automobile and sentenced to five years. The evidence indicated that Mrs. Parcelles’s car disappeared after she parked it, while Stovall claimed an alibi that he was in Anniston rather than Auburn. [1][2]

Stovall moved for a continuance because subpoenaed defense witnesses were absent and submitted an affidavit describing testimony from Teresa Slaught that would support his alibi. [3][4][5] The trial court denied the continuance, initially granted permission to make a showing concerning the absent witness, but then refused to accept the showing because defense counsel had not personally interviewed her. The court also denied a renewed motion for a continuance. [6][7][8][9] Stovall appealed from the Lee County Circuit Court. [10]

Legal Issues Presented

  1. Whether the trial court erred by denying a continuance requested because material, subpoenaed defense witnesses were absent. [11][6]
  2. Whether the court was required to permit the defendant to make an affidavit-based showing of the absent witness’s expected testimony without requiring defense counsel to vouch for its contents. [12][13]
  3. Whether the ruling denied Stovall compulsory process for obtaining witnesses under Constitution 1901, § 6. [14]

Arguments of the Parties

Appellant's Arguments

  • When an indigent defendant is denied a continuance because duly subpoenaed material witnesses are absent, the defendant should be allowed to establish by affidavit what those witnesses would testify. [15]
  • Stovall’s counsel requested permission to make such a showing concerning the absent witnesses and objected when the court refused to accept it. [6][16]

State's Arguments

  • The decision whether to grant a continuance in a criminal case rests within the trial court’s sound discretion and should not be disturbed absent a clear abuse of discretion. [17]

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Powell v. State, 39 Ala. App. 246, 100 So.2d 38 Support for allowing an affidavit-based showing concerning absent material witnesses. Cited in support of the appellant’s position. [15]
Clark v. State, 36 Ala. App. 159, 57 So.2d 375 Support for allowing an affidavit-based showing concerning absent material witnesses. Cited in support of the appellant’s position. [15]
Thomas v. State, 15 Ala. App. 408, 73 So. 558 Support for allowing an affidavit-based showing concerning absent material witnesses. Cited in support of the appellant’s position. [15]
Pausens v. State, 63 Ala. App. 113, ___ So. ___ Support for allowing an affidavit-based showing concerning absent material witnesses. Cited in support of the appellant’s position. [15]
Divine v. State, 279 Ala. 291, 184 So.2d 628 A continuance is ordinarily within the trial court’s sound discretion. Cited by the State in support of affirmance under the abuse-of-discretion standard. [17]
Peaden v. State, 275 Ala. 72, 152 So.2d 136 A continuance ruling will not be disturbed unless the trial court clearly abused its discretion. Cited by the State in support of affirmance. [17]
Talley v. State, 174 Ala. 101, 57 So. 445 Permitting a showing for an absent witness does not constitute a judicial admission that the showing is true; it means only that the absent witness would give that testimony if present. The court relied on Talley to conclude that the showing would be evaluated with the other evidence and would not improperly bind the State or the jury. [12][18][19]
Walker v. State, 117 Ala. 85, 23 So. 670 Additional support concerning the treatment of a showing for an absent witness. Cited with Talley in support of the court’s conclusion that the jury would weigh the showing along with the other evidence. [19]
Funderburk v. State, 145 Ala. 661, 39 So. 672 The State may prove the falsity of the showing, at least through witnesses other than the absent witness. The court cited this principle to reinforce that accepting the showing would not prevent the State from contesting it. [20]
Anno., 9 A.L.R.3d 1180 Additional authority concerning showings for absent witnesses. Cited alongside Talley and Walker. [19]

Court's Reasoning and Analysis

The court recognized the procedural dispute over Stovall’s absent, subpoenaed witnesses and the affidavit offered to establish Teresa Slaught’s proposed alibi testimony. [3][4][11][21]

The trial court effectively required defense counsel to vouch for the affidavit by asking whether counsel had personally spoken with the witness and then refusing the showing because counsel had not done so. [22][7]

Under Talley, however, an absent-witness showing is not treated as a judicial admission of truth. It merely represents the testimony the witness would give if present. [12][18] The jury may weigh the showing with the other evidence, and the State may present evidence—at least from other witnesses—challenging its truth. [19][20]

Because accepting the showing would not conclusively establish the alibi or prevent the State from disputing it, the court concluded that once the trial court required counsel to vouch for the affidavit, it was required to grant a continuance until the witness could be produced. [13][20]

The court further held that using such a showing was the only way to avoid denying the defendant compulsory process for witnesses under Constitution 1901, § 6. The trial court’s ruling was therefore erroneous. [14]

Holding and Implications

REVERSED AND REMANDED. The judgment below was reversed, and the case was remanded for a trial de novo because the trial court improperly denied the defendant the opportunity to make an absent-witness showing and denied a continuance after requiring counsel to vouch for the affidavit. [14][23]

The direct consequence was a new trial for Stovall. The opinion did not state any broader implications beyond protecting the defendant’s access to compulsory process in these circumstances.

Show full summary ...

Jack D. STOVALL v. STATE.

CATES, Judge.

Grand larceny (of an automobile); sentence five years.

Mrs. Parcelles parked the car at 12:45 P.M. and returned at 4:45 to find it missing. The defendant claimed alibi, i. e. that he was not in Auburn but in Anniston some 100 miles away on the day on which Mrs. Parcelles's car disappeared.

To support a motion for a continuance because of the absence of a material witness, Stovall filed the following affidavit for a showing:

"AFFIDAVIT

"TO THE HONORABLE JUDGE OF THE CIRCUIT COURT OF LEE COUNTY, ALABAMA:
"Comes now the Defendant, Jack D. Stovall and files the following affidavit.
"The Defendant offers to prove by Teresa Slaught, if present, who was duly subpoenaed by the Defendant as a witness in this cause and duly served, that he was present at her house in Anniston, Alabama, on February 12, 1969, from 12:00 Midnight until 6:00 p. m. the same day. That he left her house at about 9:00 a. m. on February 12, 1969, and that she went with him. That they went for a drive in a 1961 Chevrolet automobile owned by the Defendant's father and returned to her house at approximately 3:00 p. m. on February 12, 1969. That the Defendant was in her presence all day and that they never at any time left the city limits of Anniston, Alabama.

"Witness my hand this the 12th day of June, 1969.

"/s/ Jackie Stovall ------------------ Jack D. Stovall

"FILED IN OPEN COURT THIS 12 DAY OF JUNE, 1969

"/s/ Ed E. Johnston, Jr., CLERK" --------------------------------

The transcript of evidence shows the following colloquy between the bench and bar:

"THE COURT: Let the record show that the defendant makes a motion for continuance of this case on the grounds that the defendant's witnesses have not yet appeared in Court. What do you say about that Mr. Young?
"MR. YOUNG: We resist it, your Honor. We have witnesses here from ninety and a hundred miles away.
"THE COURT: Did you have subpoenas issued for your witnesses?

"MR. INGRUM: Yes, sir.

"THE COURT: They were served?

"MR. INGRUM: On three of them, yes, sir.

"THE COURT: Served on three of them?

"MR. INGRUM: Yes, sir.

"THE COURT: How many witnesses from out of town did you have Mr. Young?

"MR. YOUNG: Have two.

"THE COURT: Two?

"MR. YOUNG: Yes, sir. One of them is a very busy man.
"THE COURT: Well, someone informed me that your witnesses had left Anniston early this morning.

"MR. INGRUM: That was Mr. Young's witnesses.

"MR. YOUNG: Mine are here. All except one and we're ready to proceed.
"THE COURT: Motion for continuance is respectfully overruled Mr. Ingrum.
"MR. INGRUM: We except, your Honor. Your Honor, being as our motion for continuance has been overruled, we respectfully submit to the Court that we should be allowed to make a showing because these witnesses were duly subpoenaed and not brought into Court. We could make a show of what they would say if they had been here.

"THE COURT: Have you typed up a showing?

"MR. INGRUM: Yes, sir.

"THE COURT: Affidavit form?

"MR. INGRUM: Yes, sir.

"THE COURT: Let the Court see it. This is the only one?

"MR. INGRUM: Yes, sir, that is the only one.

"THE COURT: Mr. Young.

"MR. YOUNG: Yes, sir.

"THE COURT: Let the record show that the motion of the defendant to make a showing as to what one witness would testify to is granted by the Court. All right. Mr. Ingrum, have you talked to these witnesses?

"MR. INGRUM: I have not talked to this one.

"THE COURT: Well, the motion is overruled. Now, if the lawyer had talked to her, it would be a different story.
"MR. INGRUM: Yes, sir. Well, we except to the Court's ruling.

"THE COURT: All right.

"MR. INGRUM: We'd like to renew our motion for a continuance since the witnesses are not here and since we can't make a showing.

"THE COURT: Respectfully overruled.

"MR. INGRUM: We except."

In Talley v. State, 174 Ala. 101, 57 So. 445, Headnote 5 (which is more concise than the opinion) reads:

"5. Same; Absent Witness; Showing. — Where the court permits a showing to be made for an absent witness, its admission by the other side is not a judicial admission of the truth of the showing, but merely an agreement that such would be the testimony of the witness if present."

Since the court chose to require defense counsel in effect to vouch for the contents of the affidavit, it was then incumbent on it to grant the defendant a continuance until such time as the witness could be brought in.

We have found no Alabama case which requires that the showing be taken by the jury as truth. Rather we think that the Talley case, supra, holds to the contrary, i. e. that the jury weighs it along with the other evidence. See also Walker v. State, 117 Ala. 85, 23 So. 670; Anno., 9 A.L.R.3d 1180.

Funderburk v. State, 145 Ala. 661, 39 So. 672 (opinion in So.Rptr. only), holds that the State is not cut off from proving the falsity of the showing at least by testimony of witnesses other than the absent one.

Since the use of a showing is the only way to obviate a denial of compulsory process for witnesses under Constitution 1901, § 6, the court's ruling of instant concern was error. Therefore, the judgment below is due to be reversed and the cause remanded for trial de novo.

Reversed and remanded.

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STOVALL v. STATE
(Sep 15, 1970)