Walkley v. State

SHAlíPE, J. A court has inherent power to adjourn its sittings from time to time within the time allowed by law for holding the term. In general such power is essential to the convenient and proper disposition of business and its exercise works merely a postponement of business and not in any sense an ending of the term. Under the act regulating terms of and procedure in the county court of Elm-ore county (Local Acts, 1898-99, p. 257) -regular terms “may continue till the business is disposed of,” .and jury trials though unauthorized except at regular* terms may be held at any time during such terms. When the defendant was tried there had been no adjournment of the term sine die, but the court was being held pursuant to a temporary adjournment from one day to another day of the regular term, — -and hence the contention that the court was sitting 'in special session without power to try with juries is unwarranted. The replication by not denying impliedly admitted the matters averred as facts in the plea of former conviction and construed, as the rules of pleading require, most strongly against the pleader, its averment that the offense for which the defendant had been previously convicted was not the same for which he was presently prosecuted, must be taken as an averment merely that the two offenses though created by the same act were different in law. Such difference as the law attaches by name and punishment to several consequences of a single criminal act, results of course from the law itself, and if proper to be asserted in opposition to the plea, was matter for demurrer and not for a replication, the office of which, if not traversing the plea, is confined to ■setting up issuable .facts in avoidance -or estoppel. The [188] effect of this replication was to thwart the plea and place the defendant at disadvantage by turning the issue upon the averment of a legal conclusion. In overruling the demurrer to the replication there was error for which the judgment must be reversed. The record raises no question as to the merits of the plea. As bearing on that subject reference may be made to the following among other authorities: , Johnson v. State, 12 Ala. 840; O’Brien v. State, 91 Ala. 25; Hurst v. State, 86 Ala. 604; Moore v. State, 71 Ala. 307. The charge requested was argumentative and bad also in assuming that defendant might be legally justified in committing the assault and battery on no other provocation than the punishment received by his son on the day previous. The court did not err in refusing to allow defendant’s counsel to read law to the jury. Reversed and remanded.