Giles v. State

• Decision Date: 19 June 1890
• Citation: 8 So. 121,89 Ala. 50
• Parties: GILES v. STATE.
• Court: Alabama Supreme Court

8 So. 121

89 Ala. 50

GILES v. STATE.

Supreme Court of Alabama

June 19, 1890

Appeal from criminal court, Pike county; W. H. PARKS, Judge.

The indictment in this case charged that the defendant, Frazier Giles, "having been convicted in the county court of Pike county, on a charge of misdemeanor, and in consideration of M. D. Miers having confessed judgment, and becoming security for said fine and costs, entered into a contract in writing with said M. D. Miers to perform service, (said contract approved in open court by the presiding judge,) and has abandoned said contract without just cause or excuse, and has failed to perform said service; said contract having been recorded in the probate office of Pike county, within the time prescribed by law; against the peace," etc. On the remandment of this cause, on former appeal, the defendant again demurred to the indictment, and assigned the following grounds of demurrer: (1) "Said indictment fails to aver that the defendant signed the written contract in open court and that said contract was approved in writing by the judge of said court," etc. (2) "Said indictment fails to aver that said defendant was released on said confession of judgment." The court overruled each demurrer.

W L. Parks, for appellant.

W L. Martin, Atty. Gen., for the State.

CLOPTON J.

The constituents of the offense for which defendant was convicted, as described by the statute, are: First, a fine imposed on conviction for a misdemeanor Second, a written contract entered into by the accused, whereby, in consideration of another becoming his surety on a confession of judgment for the fine and costs, he agrees to do any act, or perform any service, for such person; Third, signing the contract in open court its approval in writing by the judge of the court in which the conviction was had, and being filed for record in the office of the judge of probate in the county; and fourth, a failure or refusal to do the act or perform the service as contracted. Code, § 3832. It is true that the failure or refusal will be free from criminality if there be a good and sufficient excuse, but this exception constitutes no part of the definition or description of the offense, is matter of defense, and need not be negatived by averment. Britton v. State, 77 Ala. 202. When this case was formerly before the court, (88 Ala. 230, 7 South. Rep. 271,) the grounds of demurrer then presented and...