Ex parte Birmingham Railway, Light & Power Co.

ANDERSON, J. — When a party to a cause announces not ready because of the absence of material witnesses who have been duly served with process and who are absent without the consent of said party, the court may, in its discretion, grant a showing or written statement of what is expected to be proven by the absent witnesses, and, if this showing or statement be admitted by the opposite party, the jury must give to it the same consideration as if the witness had testified in person before the jury. — Woolsey v. Jones, 84 Ala. [582] 88, 4 South. 190; Williams v. Anniston Co., 164 Ala. 84, 51 South. 385; Crawford v. State, 44 Ala. 382; rule 16, p. 1521, Code of 1907. The defendant’s refused charge 5, which will he set out by the Reporter, properly asserted the law and should have been given, as charges similar thereto were held proper in the cases supra. The charge does not invade the province of the jury, does not single out or give undue prominence to any part of the evidence, and is not argumentative; it simply asserts a legal rule governing the consideration of a certain class of evidence heretofore sanctioned and approved by this court. It may be true that none of the cases supra reversed the trial court for refusing such a charge as the trial court gave it in the Woolsey and Williams Cases, and the court was dealing with the oral charge in the Crawford Case, yet it was unqualifiedly held to be a proper charge, and there was no suggestion or intimation in any of said cases that the refusal of same would be justified in cases in which showings had been received in evidence. ' The certiorari is awarded, and the judgment of the Couxd of Appeals is reversed, and the cause is remanded to said court. Certiorari awarded, and reversed and remanded. All the Justices concur.