McCLELLAN, J.
The right of a defendant in a criminal prosecution “to have compulsory process for obtaining witnesses in his favor” (Const. 1901, § 6) was thus explained and defined in Childress v. State, 86 Ala. 77, 83, 84, 5 South. 775, 777: “The object and meaning of the constitutional guaranty is that the court will exercise its powers, by the processes usual and known to the law, to compel the attendance of witnesses on behalf of the accused. It does not operate to take from the court the discretion as to granting or refusing continuances, or the authority to adopt proper means for ascertaining whether an application for a continuance is made with the view to obtaining a. fair trial, or for the mere purpose of delay. The defendant had previously obtained the issuance of subpoenas for his witnesses, which is the ordinary preliminary process to secure their attendance. Extraordinary compulsory process, such as attachment, is not resorted to, until the witness has placed himself in contempt, and the propriety and the necessity of the process is shown.”
[113]*113The opinion in the Childress appeal was written under the influence of the “compulsory process” provision of the Constitution of 1875, ivhich was identical with that of the Constitution of 1901, in that regard, and the reordination of the provision in the latter Constitution effected to impress it with the previous interpretation put upon it by this court in Childress Case. It will be observed that the court took a distinction between “ordinary compulsory process and “extraordinary” compulsory process; the latter being instanced in the process of attachment. It is evident, consistent with the distinction taken, that the denial or impairment of the right to ordinary compulsory process immediately violates the constitutional, guaranty, provided of course the accused is not negligent in the premises. But when the inquiry is whether the right to extraordinary compulsory process has been denied or infracted, the discretion of the court to grant or refuse a continuance becomes an important factor. In the Childress Case this is so plainly set down as to require no restatement. So that in cases where the subpoena has been served, and the witness has failed to appear as summoned, and application is made to the court to exert its extraordinary process — attachment—and to continue the cause, and' the court refuses and puts the prosecution on a show-ing, by the accused, as to what the absent witness or witnesses would testify if present, the only matter of review on appeal is: Did the trial court abuse its discretion in the premises?
While not expressing the rule in the exact form stated, the following of our decisions support the conclusion, when read in the light of the facts presented in each: Winter v. State, 123 Ala. 1, 26 South. 949; Martin v. Sate, 125 Ala. 64, 28 South. 92; Kilgore v. State, 124 Ala. 24, 27 South. 4; Davis v. State, 92 Ala. 20, 9 [114]*114South. 616; Huskey v. State, 129 Ala. 94, 29 South. 838.
The case of Walker v. State, 117 Ala. 85, 23 South, 670, cited for appellant, has been examined. It is said in that case that no convenience of the court nor condition of the docket can rightfully justify the denial of the right of the accused to the constitutional guaranty under consideration. That is obviously a sound pronouncement, for both conditions relate to matters wholly without the power of, or rightful influence against, the accused; but it is clear that this court did not intend to qualify the rule of discretion, in respect of continuances, of the trial courts stated in the same opinion. Indeed, in that case — and the observations there made are immediately pertinent to this case as will later appear — the court’s declination to continue the case was approved on the ground, besides another recognizing the discretion before adverted to, that no showing was made that the witnesses were -within the jurisdiction of the court. Walker’s Case is in accord with the course of decision, on the inquiry in hand, illustrated in the cases before cited.
The reporter will set out the recitals of the bill in reference to the question under consideration. It will be readily seen that there was no showing that the absent witnesses were within the jurisdiction of the court, and that they were absent without the consent or procurement of the accused. Besides, since error is never presumed, we cannot affirm that the court abused its discretion in refusing the continuance and in putting him on a showing of what his absent witnesses would testify if present, even if the denial was predicated alone upon a finding that the continuance was sought merely for delay.
[115]*115On the evidence before ns, it ivas open for the jury to find that Strong, the.person alleged to have been assaulted, was an officer, with police powers, of the town of Madison; that in the performance of his duty he undertook to arrest the defendant within the corporate limits of the municipality of Madison; that defendant resisted lawful arrest, knowing that Strong was an officer; and that he assaulted Strong as charged in the indictment. It was also open to the jury to find that a public offense was committed in the presence of Strong, the officer.
.Under these circumstances, it is clear that Strong had the right to arrest defendant, and that Avithout Avarrant.
By special charge numbered 7, refused to defendant, the jury Avere to be instructed that defendant had the right to resist Strong unless he advised defendant that he was an officer and for what charge he was attempting to arrest him. The testimony of the defendant, himself, shoAvs beyond cavil that he knew Strong was the municipal officer. He had been, he testified, present that afternoon Avhen Strong was threatening to arrest and did arrest Leslie Sanderson; that just previous to the assault charged “Walter Sanderson came up and told us Ave had better go on, as Strong Avas coming. I thought Walter was joking, and about that time Strong and his brother came up.” The defendant could not have been better informed of Strong’s official character than his own testimony shows him to have been.
The statute (Code, § 6270) makes it the duty of an officer arresting without Avarrant to inform the intended prisoner of his authority and “the cause of the arrest,” except in certain defined cases. This statute has been construed in Brown’s Case, 109 Ala. 70, 89-91, [116]*11620 South. 103; Richards v. Burgin, 159 Ala. 282, 49 South. 294.
Without assuming to pronounce charge 7 free, under the facts of this case, from other criticism, it was well refused because of its misleading tendency. The charge hypothesized the right of defendant to resist unless Strong “advised defendant that he was an officer and what charge he was attempting to arrest defendant on.” The misleading tendency inhered in the conjoining of the two conditions. Its inevitable tendency was to lead the jury to conclude that, notwithstanding defendant knew (as'was shown) of the official character of Strong, still the right to resist existed unless Strong-advised defendant that he was an officer. It is manifest that the office of this feature of the statute is to inform the person whose arrest is sought that the arrestor is an officer. If that information he already has, the reason for the statutory requirement is entirely satisfied. Indeed, in Brown'e Case, supra, Brickell, C.
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McCLELLAN, J.
The right of a defendant in a criminal prosecution “to have compulsory process for obtaining witnesses in his favor” (Const. 1901, § 6) was thus explained and defined in Childress v. State, 86 Ala. 77, 83, 84, 5 South. 775, 777: “The object and meaning of the constitutional guaranty is that the court will exercise its powers, by the processes usual and known to the law, to compel the attendance of witnesses on behalf of the accused. It does not operate to take from the court the discretion as to granting or refusing continuances, or the authority to adopt proper means for ascertaining whether an application for a continuance is made with the view to obtaining a. fair trial, or for the mere purpose of delay. The defendant had previously obtained the issuance of subpoenas for his witnesses, which is the ordinary preliminary process to secure their attendance. Extraordinary compulsory process, such as attachment, is not resorted to, until the witness has placed himself in contempt, and the propriety and the necessity of the process is shown.”
[113]*113The opinion in the Childress appeal was written under the influence of the “compulsory process” provision of the Constitution of 1875, ivhich was identical with that of the Constitution of 1901, in that regard, and the reordination of the provision in the latter Constitution effected to impress it with the previous interpretation put upon it by this court in Childress Case. It will be observed that the court took a distinction between “ordinary compulsory process and “extraordinary” compulsory process; the latter being instanced in the process of attachment. It is evident, consistent with the distinction taken, that the denial or impairment of the right to ordinary compulsory process immediately violates the constitutional, guaranty, provided of course the accused is not negligent in the premises. But when the inquiry is whether the right to extraordinary compulsory process has been denied or infracted, the discretion of the court to grant or refuse a continuance becomes an important factor. In the Childress Case this is so plainly set down as to require no restatement. So that in cases where the subpoena has been served, and the witness has failed to appear as summoned, and application is made to the court to exert its extraordinary process — attachment—and to continue the cause, and' the court refuses and puts the prosecution on a show-ing, by the accused, as to what the absent witness or witnesses would testify if present, the only matter of review on appeal is: Did the trial court abuse its discretion in the premises?
While not expressing the rule in the exact form stated, the following of our decisions support the conclusion, when read in the light of the facts presented in each: Winter v. State, 123 Ala. 1, 26 South. 949; Martin v. Sate, 125 Ala. 64, 28 South. 92; Kilgore v. State, 124 Ala. 24, 27 South. 4; Davis v. State, 92 Ala. 20, 9 [114]*114South. 616; Huskey v. State, 129 Ala. 94, 29 South. 838.
The case of Walker v. State, 117 Ala. 85, 23 South, 670, cited for appellant, has been examined. It is said in that case that no convenience of the court nor condition of the docket can rightfully justify the denial of the right of the accused to the constitutional guaranty under consideration. That is obviously a sound pronouncement, for both conditions relate to matters wholly without the power of, or rightful influence against, the accused; but it is clear that this court did not intend to qualify the rule of discretion, in respect of continuances, of the trial courts stated in the same opinion. Indeed, in that case — and the observations there made are immediately pertinent to this case as will later appear — the court’s declination to continue the case was approved on the ground, besides another recognizing the discretion before adverted to, that no showing was made that the witnesses were -within the jurisdiction of the court. Walker’s Case is in accord with the course of decision, on the inquiry in hand, illustrated in the cases before cited.
The reporter will set out the recitals of the bill in reference to the question under consideration. It will be readily seen that there was no showing that the absent witnesses were within the jurisdiction of the court, and that they were absent without the consent or procurement of the accused. Besides, since error is never presumed, we cannot affirm that the court abused its discretion in refusing the continuance and in putting him on a showing of what his absent witnesses would testify if present, even if the denial was predicated alone upon a finding that the continuance was sought merely for delay.
[115]*115On the evidence before ns, it ivas open for the jury to find that Strong, the.person alleged to have been assaulted, was an officer, with police powers, of the town of Madison; that in the performance of his duty he undertook to arrest the defendant within the corporate limits of the municipality of Madison; that defendant resisted lawful arrest, knowing that Strong was an officer; and that he assaulted Strong as charged in the indictment. It was also open to the jury to find that a public offense was committed in the presence of Strong, the officer.
.Under these circumstances, it is clear that Strong had the right to arrest defendant, and that Avithout Avarrant.
By special charge numbered 7, refused to defendant, the jury Avere to be instructed that defendant had the right to resist Strong unless he advised defendant that he was an officer and for what charge he was attempting to arrest him. The testimony of the defendant, himself, shoAvs beyond cavil that he knew Strong was the municipal officer. He had been, he testified, present that afternoon Avhen Strong was threatening to arrest and did arrest Leslie Sanderson; that just previous to the assault charged “Walter Sanderson came up and told us Ave had better go on, as Strong Avas coming. I thought Walter was joking, and about that time Strong and his brother came up.” The defendant could not have been better informed of Strong’s official character than his own testimony shows him to have been.
The statute (Code, § 6270) makes it the duty of an officer arresting without Avarrant to inform the intended prisoner of his authority and “the cause of the arrest,” except in certain defined cases. This statute has been construed in Brown’s Case, 109 Ala. 70, 89-91, [116]*11620 South. 103; Richards v. Burgin, 159 Ala. 282, 49 South. 294.
Without assuming to pronounce charge 7 free, under the facts of this case, from other criticism, it was well refused because of its misleading tendency. The charge hypothesized the right of defendant to resist unless Strong “advised defendant that he was an officer and what charge he was attempting to arrest defendant on.” The misleading tendency inhered in the conjoining of the two conditions. Its inevitable tendency was to lead the jury to conclude that, notwithstanding defendant knew (as'was shown) of the official character of Strong, still the right to resist existed unless Strong-advised defendant that he was an officer. It is manifest that the office of this feature of the statute is to inform the person whose arrest is sought that the arrestor is an officer. If that information he already has, the reason for the statutory requirement is entirely satisfied. Indeed, in Brown'e Case, supra, Brickell, C. J., states that it may be presumed that a sheriff or constable is known, in his proper jurisdiction, to the residents or inhabitants thereof.
There was no prejudicial error resulting from the parts of the oral charge of the court to which exceptions were taken.
There was, as before stated, evidence from which the jury could have reasonably concluded that a public offense was committed in the town’s limits, in the presence of Strong, and that the assault charged was therein. If the defendant conceived that Strong was not an officer outside of the municipality, and that the offense and the assault charged occurred beyond the corporate limits of Madison, then explanatory special instructions should have been requested on that theory. The court’s statements to the jury, in the particulars com[117]*117plained of, were abstractly correct expositions of the law.
Charge á was well refused. It predicated au acquittal upon the hypothesis that the difficulty in question occurred outside of the corporate limits of Madison. If not otherwise faulty, it prctermitted entirely the right of Strong to arrest defendant for a public offense committed in his presence.
Charges 1, 2, and 5 were, in effect, the affirmative charges for the defendant. Obviously, they were properly refused.
The judgment must be affirmed.
Affirmed.
Dowdell, C. J., and Anderson and Evans, -JJ., concur. Simpson, Mayfield, and Sayre, JJ., dissent.