138 Ala. 63 | Ala. | 1902
1.” The general rule is, that a lulling sustaining or overruling a demurrer will not on error be revised, unless the demurrer appear of record. — 3 Brick. Dig. 405, § 13.
In this case, the minute entry shows, that demurrer to the affidavit and warrant was overruled. What that demurrer was, appears in the bill of exceptions alone. In this state of the case, it was incumbent on the. defendant complaining on appeal of the ruling of the court on the demurrer, to affirmatively show error. The affidavit on which the defendant was proceeded against, appears on examination to be in accordance with the statute in such cases, was not. defective on its face (Code, § 4751), and was not liable to demurrer on any good ground. The ruling on demurrer must, therefore, be affirmed.
2. The statute authorizes a defendant, on Avhom a fine is imposed on conviction for a misdemeanor, to execute in open court a Avritten contract, approved in Avriting by the judge of the court, Avliereby, in consideration of another becoming his surety on a confession of judgment for the fine and costs, to do an act or perform any sendee for such person, after being released on such confession of judgment, etc.
The State introduced in evidence against the objection of defendant his contract Avith the prosecutor, M. J. OAvens, — the objections of defendant being, that the affidavit “charges defendant Avith failing to perform his contract Avith' surety confessing tire judgment Avith fine and costs, and the contract shoAvs that Owens only confessed judgment with the defendant for costs;” and, “because the contract sIioavs on its face, that (hvens confessed judgment Avith the defendant for costs only and. not "for the fine and. costs as required by the statute.”
The contract sought to be introduced shows, that judgment had been rendered against defendant in a misdemeanor case, for $20, and costs, amounting together to $48.85, and that a judgment was confessed by defendant and said OAvens for the costs only.
The affidavit for arrest recites, that said Owens became the surety for defendant on a confessed judgment for fine and, easts in the misdemeanor case, in consider-ration of which defendant agreed to do farm Avork for said OAvens. The contract sought to be introduced, showed that said confessed judgment was not for the fine and costs in the misdemeanor case, but for the costs alone. It thus appears the affidavit, constituting the complaint on Avhicli defendant was tried, and which it was incumbent on the State to prove, recited that the judgment confessed was for fine and, costs in the case referred to, and the contract offered by the State to prove it, showed that it Avas for costs alone, that the judgment was confessed. There was, therefore, a variance in the allegations of the complaint, and the proof offered to sustain it, and the court erred in allowing the contract to be introduced.
It is unnecessary to consider any other- question raised.
Reversed and remanded.
