Burns v. Mayor

34 Ala. 485

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

STONE, J.

The Code (§ 2253) declares, that, on demurrer, “no objection can be taken or allowed, which is not distinctly stated in the demurrer.” The demurrer in this case does state s the part or portion of the complaint to which it is interposed; but it does not state the objection to the complaint, or part of the complaint.

Suppose a demurrer were filed to an entire complaint, or to an entire count in a complaint, and the demurrer should state no other objection than that it was interposed to the whole complaint, or to a particular count in the complaint; all would concede, that this would not be a compliance with the statute. It would fail to state distinctly the objection relied on. The present demurrer is obnoxious to the same criticism. To comply with the statute, it should point out and specify the defect or defects on which, the party demurring asks the judgment of the court.

The charge asked should not have been given. The ordinance imposed a penalty on all persons who sell, furnish, or give away, spirituous liquors, &c., to a slave, &e. The charge claimed an acquittal on the single ground, that the slaves were sent into one house, while the defendant lived at the time in another. Mrs. Burns may have had her residence on the corner of Union and Cedar streets, and still may herself have sold, furnished or given, or, with her permission and authority, another may have sold, furnished" or given liquor to the slaves, in a house which stood on the corner of Madison and Cedar streets.

No charge was asked on the sufficiency of the evidence, or its tendencies. Hence, we need not, and do not consider whether there was sufficient evidence to justify a conviction. That was, under proper instructipns, a question for the jury; and we have no authority for supposing the question was not fairly presented for their deliberation.

Judgment of the circuit court affirmed.