Fiorella v. City of Birmingham

• Decision Date: 09 May 1950
• Docket Number: 6 Div. 825
• Citation: 35 Ala.App. 384,48 So.2d 761
• Parties: FIORELLA v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Appeals

Page 761

48 So.2d 761

35 Ala.App. 384

FIORELLA v. CITY OF BIRMINGHAM.

6 Div. 825.

Court of Appeals of Alabama.

May 9, 1950.

Rehearing Denied June 20, 1950.

Gibson & Hewitt, of Birmingham, for appellant.

Chas. H. Brown, Asst. City Atty., of Birmingham, for appellee.

The following charge was refused to defendant: '14. The Court charges the jury that the burden of proof is upon the City, and it is the duty of the City to show beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, every circumstance necessary to show that the defendant is guilty, before the defendant is required to introduce any evidence in his favor or to explain any circumstance surrounding him, and if there is a reasonable doubt of this defendant's guilt, then you must acquit the defendant.'

HARWOOD, Judge.

This appellant stands convicted of violating an ordinance of the City of Birmingham pertaining to policy games.

The complaint filed against the appellant in the circuit court, omitting the formal parts, charges that appellant, 'within twelve months before the beginning of this prosecution, and within the City of Birmingham or the police jurisdiction thereof, did possess tickets, writings, papers, articles, matters, or things of a nature or kind, which are customarily or usually used in the operation of a lottery, policy game, or other game of chance, contrary to and in violation of Section 600 of the General City Code of Birmingham of 1944.'

A demurrer, supported by a large number of grounds, was filed to this complaint. Only two of these grounds are argued in appellant's brief. This being an appeal from a conviction for violation of a city ordinance, it is quasi criminal, and subject to the rules governing civil appeals. Jackson v. City of Mobile, 33 Ala.App. 95, 30 So.2d 40. We shall therefore limit our review to the errors specified in appellant's brief.

Several grounds of demurrer argued jointly in appellant's brief assert that the complaint is conclusionary in character, in that it does not sufficiently allege which part or parts of the ordinance was violated.

Complaints highly similar to the present one have, in regard to the alleged fault existing in the present complaint, been held sufficient. We see no reason for departing from this conclusion. Stinson v. City of Birmingham, 31 Ala.App. 577, 20 So.2d 113, certiorari denied 246 Ala. 232, 20 So.2d 114; Brooks v. City of Birmingham, 31 Ala.App. 579, 20 So.2d 115, certiorari denied 246 Ala. 232, 20 So.2d 118.

The other grounds of demurrer argued by appellant assert the unconstitutionality of the ordinance under which appellant was convicted, as being violative of the Fourteenth Amendment of the Constitution of the United States, and Section 6 of the Constitution of Alabama of 1901.

Appellant argues that the ordinance is unreasonable and arbitrary and therefore unconstitutional in that the possession of various sorts of innocent papers, and slips, in common every day use, would be in violation of the ordinance.

This very point was considered by us, on rehearing, in the recent case of City of Birmingham v. Reed, Ala.App., 44 So.2d 607, at pages 613, 614. In said opinion we set out in haec verba Section 600, supra, and the reasons for our conclusions that Section 600, supra, was not invalid on this asserted ground. We will, in the interest of brevity, refrain from again setting forth the statute and our conclusions in this regard in this opinion. We do however adopt our conclusions in this regard in this opinion. While the Supreme Court, 44 So.2d 614, on certiorari denied the writ in the Reed case, supra, the conclusion was expressed that the constitutionality of Section 600, supra, was not before us, though the Supreme Court stated that such conclusion did not indicate an expression of disagreement with our conclusion as to the constitutionality of the ordinance now being considered.

In the present case it is asserted additionally that the ordinance is unconstitutional because discriminatory, in that a portion of the ordinance provides: 'The possession forbidden by this section shall not apply to a possession had by a police officer, sheriff, deputy sheriff or other peace officer, judge or attache of a court or an attorney, when such possession is connected with the prosecution or investigation of a violation of this section * * *.'

Appellant's counsel argues that if a defense attorney, in investigating or trying a case involving the articles mentioned in the ordinance handled the said articles, if only for a moment, he would be guilty of violating the ordinance.

A reasonable construction of the above portion of the ordinance we think clearly permits an attorney, whether for the state, or for the defense, to possess such articles 'When such possession is connected with the prosecution or investigation of a violation' of the section. 'Prosecution' is but the processing of a criminal judicial proceeding.

It is further contended that the portion of Section 600, supra, providing that--'but the burden of offering evidence that the accused's possession is under this exception shall rest upon the accused' misplaces the burden of proof and is violative of due process of law.

The effect of such provision is merely to make possession of the mentioned article prima facie evidence of violation of the ordinance. It is not conclusive evidence. Such rule of evidence is often created in our State statutes, particularly those dealing with intoxicating liquors, and has been held to be within the legislative power. Fitzpatrick v. State, 169 Ala. 1, 53 So. 1021. We see no reason why the governing body of a city cannot make similar provisions.

For the City Henry Darnell, and W. E. Coleman, detectives for the Birmingham Police Department, and with many years experience as members of the gambling detail of said department, testified that from a truck in which they had secreted themselves they observed the appellant get out of an automobile and start toward a house. Some Negroes motioned to appellant with their arms and he turned and made a circle around some nearby hedge bushes. He had a sack tucked under his arm as he started toward the house, but did not have it when he returned to his automobile.

Mr. Coleman went to the hedge around which appellant had circled and found a sack caught in a fork in the bush. It was the judgment of both witnesses for the city that this was the sack carried by appellant. The sack contained 74 plastic balls. All of these balls except one were numbered. One was blank. Two more plastic balls numbered 12 and 57 were found in appellant's automobile. These numbers fit into the set of balls found in the sack.

Both of these detectives, after their knowledge gained from years of experience with the gambling detail had been established, testified that these balls were of a type customarily used in the operation of a policy game.

In his own behalf the appellant testified that he had gone to the scene of his arrest looking for a colored man named Ed White. He left his car, and walked around the hedge bush. He learned White had moved from the neighborhood, and returned to the car. He denied he had a sack under his arm when he first left his car.

Appellant saw the officers find the two balls in the automobile, but claimed he knew nothing of their being in the car as he had borrowed it.

It is our opinion that the evidence presented by the City, if believed by the jury under the required rule, was ample in its tendencies to support the verdict rendered.

At the opening of this trial the court made the following statement: 'May I say this to this panel of the jury: The matter before you comes by virtue of a law which allows any person convicted in the Recorder's Court to appeal his case into the Circuit Court, to be tried de novo, by a jury of his peers, and the matter before you, in short, is a complaint by the City of Birmingham that'--etc. (here the court stated the substance of the complaint).

At the conclusion of the court's statement appellant moved 'that this venire be released or discharged and a new one be brought in, on the ground that your honor stated that the defendant had been convicted in the Recorder's Court.'

The motion was denied and appellant excepted.

The court's statement was but an explanation to the jury of the basis of jurisdiction of the circuit court to try this cause, initiated in the name of the City of Birmingham. The circuit court's jurisdiction arose solely by virtue of appellant's conviction in the Recorder's Court. Stinson v. City of Birmingham, 31 Ala.App. 577 20 So.2d 113. It was a correct statement of law, which is presumptively known to every person. Certainly the statement did not reflect any bias or prejudice on the part of the court, nor do we believe the appellant was probably injured in his substantial rights by reason of the statement.

During the cross examination of the City's witness Darnell the court sustained the City's objection to the following question: 'And with reference to lotteries, any raffle or game of chance is defined as a raffle isn't it. For instance, if I decided to raffle off my watch and sold chances, that is a lottery, technically, under the law, isn't it?'

The objection was properly sustained. As stated in 20 Am.Jur., Sec. 799, supported by abundant citation of authority: 'It may be laid down as a general rule that a witness is never permitted to give his opinion on a question of law or upon matters which involve a question of law. This rule is applicable to both expert and non expert witnesses.' See also Alabama Fuel & Iron Co. v. Adams, Rowe & Norman, 216 Ala. 403, 113 So. 265. The reason for such rule is that conclusions of law are exclusively for the courts.

Further during the cross examination of the witness Darnell the record shows the following occurrence:

'Mr. Gibson: I will ask Your Honor to instruct this witness not to make a speech and not to...