62 Ala. 240 | Ala. | 1878
A demurrer to evidence, is a declaration of record by the party making it, that be will not proceed further, because the evidence given by his adversary is insufficient to maintain bis cause of action, or tbe matter of bis defense, and is analagous to a demurrer in pleading. Tbe effect of it is now declared by the statute, as it had been declared on common law principles by tbis court in numerous decisions. — 1 Brick. Dig. 883, § 1146. Tbe words of the statute are: “ Tbe effect of a demurrer to evidence, is an admission by tbe party demurring, of tbe truth of the evidence demurred to, and of every inference or conclusion which a jury could legally deduce therefrom; and devolves on tbe court tbe determination of tbe issue of fact, between tbe parties, as well as tbe law.” — -Code of 1876, § 3104. In civil cases, it is a matter of right in either party to interpose such demurrer, and tbe refusal of an inferior court to compel a joinder, (the demurrer not being frivolous,) is an error which will work a reversal of tbe judgment. — Brandon v. P. & M. Bank, 1 Stew. 320; Alexander v. Fitzpatrick, 4 Port. 405; Williams v. McConico, 27 Ala. 572; Shaw v. White, 28 Ala. 637. Tbe Code is a revision of tbe law in respect to such demurrers in civil cases, and operates an abrogation of tbe common law, so far as is inconsistent with it. — Sedgwick on Cons. & Stat. Law, 365. It is limited, however, by its terms, to civil cases.
It seems to have been a rule at common law, that while neither tbe crown, nor the accused, could be compelled to join in a demurrer to evidence, yet, by consent, such demurrer could be interposed by tbe accused. — Brister v. State, 26 Ala. 127; Bryan v. State, Ib. 65; Boss’ case, 1 Grat. 557; 1 Chit. Cr. Law, 623. In Bryan v. State, supra, such demurrer was interposed, and a judgment of conviction affirmed upon tbe ground that there was evidence tending to establish a material ingredient of tbe offense, and as there was evidence tending to establish tbe fact, the demurrer was an admission of it. Tbe constitution guarantees, “in all prosecutions by indictment, a speedy public trial, by an impartial jury of tbe
A party accused of a violation of the criminal law, may waive many of the rights and privileges secured to him by the constitution and the common law; but the courts are not inclined to encourage such waivers. These rights and privileges may in some cases seem unreasonable, and seem to afford him undue advantages. No “ extremity of inconvenience,” will ever excuse a court for invading them. — Com. v. Lester, 17 Serg. & Rawls, 164. “ Tutius semper est errare in dequietando, quam in puniendo; ex parte misrecordiae quam ex parte justitice.” In no case of conviction, in which the evidence is palpably inconsistent with the reasonable supposition of the innocence of the accused, can the primary court refuse to grant a new trial. Granting it, rests in the discretion of the court, and its refusal is not revisable on error. The discretion is judicial, regulated and controlled by the law, as completely as if its exercise was revisable on error. It is not to be presumed, that in exercising it, any judge would be influenced by the consideration, that a party convicted of crime has no remedy, if he decides against him. Such a consideration would incline him to listen more readily and favorably to the application, and if the verdict is palpa
A judgment of conviction rendered on such demurrer, can not be sustained, when there is an absence of evidence of any material fact. Yenne, proof of the locality of the offense, corresponding with the averment of the indictment, is indispensable to support a judgment of conviction. There is no fact found in the written evidence to which the demurrer was interposed, which reasonably can be accepted as proving the commission of the offense in Hale county. The inconclusiveness of the evidence in other respects, when subjected to the tests to which evidence in all criminal cases, must be subjected, may be passed. Por this reason, if no other, the judgment of conviction must be reversed and the cause remanded; the prisoner will remain in custody until discharged by due course of law.