Burke v. State

Supreme Court of Alabama

Burke v. State

74 Ala. 399

CourtSupreme Court of Alabama

DecidedDecember 15, 1883

StatusPublished

Cited by2 cases

This text of 74 Ala. 399 (Burke v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burke v. State, 74 Ala. 399 (Ala. 1883).

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Opinion

SOMERYILLE, J.

— The statute which provides that a “confession of .judgment is in law a release of errors” (Code, 1876, § 3945), has never been construed to have any application to cases strictly criminal. The context of the Code, as well as the reason upon which this particular statute is based, shows a legislative intention to confine it to cases other than such as are [401]*401criminal. — McNeil v. The State, 71 Ala. 71; Murphree v. Whitley, 70 Ala. 554. It seems to be clearly contemplated by the statute, relating to the subject of penal imprisonment, and sentences to hard labor in default of payment or security by defendants, that a judgment may be confessed for fine and costs, with sufficient sureties, without any prejudice to the right of appeal, or writ of error to the appellate court. — Code, 1876, §§ 4454-4455; Burke v. The State, 71 Ala. 377.

The action of the court was free from error, in refusing to give the general charge requested by the defendant, that, if the jury believed the evidence, they should find the defendant not guilty. This charge clearly ignored, ás well as contravened the principle, that, under an indictment for the offense charged, the defendant could lawfully be convicted of an attempt to commit the same offense. The statute so expressly provides, and such is the established course of our criminal procedure. Code, 1876, §4904; Wolf’s case, 41 Ala. 412; Edmonds v. The State, 70 Ala. 8.

There is no error in the record, and the judgment is affirmed.

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SOMERYILLE, J.

— The statute which provides that a “confession of .judgment is in law a release of errors” (Code, 1876, § 3945), has never been construed to have any application to cases strictly criminal. The context of the Code, as well as the reason upon which this particular statute is based, shows a legislative intention to confine it to cases other than such as are [401]*401criminal. — McNeil v. The State, 71 Ala. 71; Murphree v. Whitley, 70 Ala. 554. It seems to be clearly contemplated by the statute, relating to the subject of penal imprisonment, and sentences to hard labor in default of payment or security by defendants, that a judgment may be confessed for fine and costs, with sufficient sureties, without any prejudice to the right of appeal, or writ of error to the appellate court. — Code, 1876, §§ 4454-4455; Burke v. The State, 71 Ala. 377.

The action of the court was free from error, in refusing to give the general charge requested by the defendant, that, if the jury believed the evidence, they should find the defendant not guilty. This charge clearly ignored, ás well as contravened the principle, that, under an indictment for the offense charged, the defendant could lawfully be convicted of an attempt to commit the same offense. The statute so expressly provides, and such is the established course of our criminal procedure. Code, 1876, §4904; Wolf’s case, 41 Ala. 412; Edmonds v. The State, 70 Ala. 8.

There is no error in the record, and the judgment is affirmed.

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74 Ala. 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-v-state-ala-1883.

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