Barrett v. State

24 Ala. 74

• Court: Supreme Court of Alabama
• Decided: January 15, 1854
• Status: Published

Opinion

GOLDTHWAITE, J.

There is no ground disclosed by the record, which would have authorized the court below to give any other judgment than it did, as, in the absence of anything-appearing to the contrary, we must suppose that the law was complied with, and that the witnesses to which the motion referred were either marked upon the indictment, or directed to be summoned by the solicitor, under section 3561 of the Code.

The fact that the record shows that they were summoned to sustain the character of the prosecutor, and that he was dead before the trial, does not affect the question, as it does not appear that they were summoned after his death, nor that that fact was known to the solicitor. The Code (§ 2392), in civil cases, authorizes the summoning of more than two witnesses to defend the reputation of a witness or party; and, in other cases, rests it with the discretion of the court, to determine whether the circumstances of the case warranted the summoning of more than that number to the same fact. In criminal cases, the law has invested the solicitor with the discretion of directing the clerk to summon such witnesses as he may think the interest of the State demands, although not marked upon the indictment, (§ 3561,) and even if he abused that discretion, we incline to the opinion, that the witnesses attending in obedience to the subpoena would be entitled to their pay; here, however, there was no pretence of the kind, and the motion was properly overruled.

Judgment affirmed.