Alford v. State

CourtSupreme Court of Alabama
Citation170 Ala. 178,54 So. 213
Decision Date02 December 1910

Rehearing Denied Jan. 12, 1911.

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Mandamus by the State, on the relation of the Attorney General against J. E. Alford, Judge. From a judgment granting the writ, respondent appeals. Affirmed.

Mayfield Sayre, and Evans, JJ., dissenting.

The facts are sufficiently set out in the opinion of the court. The Fuller bill will be found in Gen. & Loc. Acts Sp. Sess. 1909, p. 63. Section 32 will be found on page 92, and is as follows: "That all prosecutions for a violation of any provision of this act, or of any other act for the suppression of the evils of intemperance, including all prosecutions for violation of the statute, approved August 9 1909, and which in general terms is for identification referred to as an act to promote temperance and to suppress the evils of intemperance, and to prohibit the manufacture sale, offering for sale, keeping or having for sale or otherwise disposing of prohibited liquors and beverages and keeping unlawful drinking places may be begun by affidavit as well as by indictment and that when begun by affidavit the person charged shall not have the right to demand that a grand jury shall prefer an indictment for the alleged offense, but the prosecution may continue no matter in what court or before what judge the trial shall be had upon the affidavit upon which it was originally begun, and the said affidavit or any complaint that may be filed in such prosecution may be amended to meet the end of justice and to prevent a dismissal of the case upon any informality, irregularity or technicality. If the prosecution is begun in a court in which jury trials are provided for, the defendant may at the time he gives bond within five days thereafter file in the cause a demand for trial by jury, or if he does not give bond he may within five days after his arrest file in the court a demand for a jury trial, in which event such jury trial shall be allowed. If the prosecution is begun before a court or judge as to which or whom no provision is made for a jury trial, the court or judge if it or he has jurisdiction to try the case and to find a party charged guilty or not guilty, shall proceed with the trial, and if the party charged is convicted, he may appeal to the circuit court or other court of record of like jurisdiction in the county, having jurisdiction in cases of appeal from the county court or from a judgment of a justice of the peace in such form and in such manner and subject to such restrictions as govern appeals under the Code of Alabama from such justices of the peace or county court, and the party may demand and be entitled to a jury trial in such higher court under the same terms and conditions that jury trials are obtainable in cases of appeals from such justices of the peace or county court to said circuit court or other court of like jurisdiction; but this section shall not alter the practice in respect to any preliminary proceeding, authorized by law before a justice of the peace. Nor is it intended hereby to take away from the circuit court of any county any exclusive jurisdiction it may have to try cases against and to punish violators of prohibitory liquor laws, and any circuit court that may have exclusive jurisdiction by any law applicable to the county to try cases against and to punish violators of prohibitory or other anti-liquor laws shall continue to have such exclusive jurisdiction of violations of this act or of the act approved August 9, 1909, hereinabove referred to and all other laws of this state for the suppression of intemperance and the promotion of temperance."

Coleman, Dent & Weil, Webb, McAlpine & Brown, and Phillip H. Stern, for appellant.

Alexander M. Garber, Atty. Gen., Thomas W. Martin, Asst. Atty. Gen., and N.E. Stallworth, for appellee.


This appeal is to test the propriety of the issuance of a mandamus from the Mobile city court to the judge of the inferior criminal court of Mobile, commanding him to reinstate on the trial docket of his court 14 criminal cases, against as many defendants, for violations of the state prohibition laws; and directing him, as judge of said court, to proceed in the hearing of such cases until a final judgment in each is rendered in the inferior criminal court of Mobile county. The prosecution in each of the cases was instituted by affidavit and warrant from that court, made returnable thereto. Before the day set for the trial of these cases, each of the defendants filed a written demand, in the court, for a jury trial. Upon the cases being called for trial, and after argument by counsel, the court decided that the defendants were entitled to a jury trial under the laws of this state, and bound them over to the city court of Mobile for such jury trial; there being no provision for a jury trial in such inferior court, and the city court being the proper court for jury trials, in that county, in criminal cases. This action of the inferior court was resisted by the state's counsel, on the ground that section 32 of the act of the Legislature known as the "Fuller bill" (Gen. & Loc. Acts Sp. Sess. 1909, p. 92) required the court to proceed with the trials to a final judgment; and that if the defendants were convicted they could then appeal to the city court and there obtain a jury trial. This contention was sustained by the city court; hence the mandamus and this appeal.

No objection is made as to the propriety or validity of the mandamus other than the invalidity of the two statutes, one known as the "Fuller bill" and the other as the "Carmichael bill."

The reporter will set out in his report of this case section 32 of the Fuller bill.

On the other hand, it seems to be conceded by counsel for appellee that, if the action of the inferior court in awarding the jury trial was proper, and therefore the awarding of the mandamus improper, that part of the statute which requires the judge or court to proceed with the trial to final judgment, and which denies to the accused a jury trial only after a conviction, is invalid or in violation of the Constitution. Therefore the validity of this provision of the "Fuller" statute is really the question for decision on this appeal.

It is insisted by appellant that this provision of the statute is in violation of several provisions of our state Constitution relating to jury trials in criminal cases, in that it denies to the defendant the right to a jury trial in the first instance, and requires him to submit to a conviction, and sentence, by the court or judge, without a jury, before he is entitled to a jury trial, which he can then obtain only by taking an appeal and undergoing another trial; and in order to appeal he is required to execute a bond, with sufficient surety, in an amount fixed by the judge or court convicting him, and which must be approved by such judge or court, or, failing therein, he must remain in jail until he can obtain another trial in the appellate court (Code, § 6725), or perform hard labor for the county, pending his appeal, as is provided by section 7607 of the Code.

Whatever may be the origin or true history of the jury trial, it is certain that, ever since the Magna Charta, the right to it has been esteemed a peculiar and inestimable privilege by the English race. For centuries this Great Charter has been appealed to, as the protector of this people against the encroachment of the prerogative or despotism of the sovereign. The English colonists who settled in America brought with them this love for and veneration of this cherished right. Notable as showing their veneration, Mr. Proffatt, in his estimable work on Jury Trials (section 82), says that all that is extant of the legislation of Plymouth Colony for the first five years consists of the single regulation, "That all criminal facts, and also all manner of trespasses and debts between man and man, shall be tried by the verdict of twelve honest men, to be impaneled by authority in form of a jury upon their oath." The right was likewise secured by nearly all the American Colonies, in one form or another, and by all as to criminal trials. The colonists, in their Declaration of Rights, claimed the common law of England, and especially that providing trial by a jury of the vicinage. The earliest state Constitutions secured this right in strong and unmistakable language. That of New Jersey, written in 1776, was as follows: "That the inestimable right of trial by jury shall remain confirmed as a part of the law of the colony without repeal forever."

The right was secured by article 3 of the original Constitution of the United States as to criminal trials, but not as to civil trials. The failure of the original Constitution to preserve the right as to civil trials caused such public discontent that it was said by the Supreme Court of the United States (in the case of Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732) that: "One of the strongest objections originally taken to the Constitution was the want of an express provision securing the right of trial by jury in civil cases." The court, in the same opinion, further adding: "The trial by jury is justly due to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy." The right as to trials in civil cases was finally secured by an amendment to the federal Constitution. These provisions in the federal Constitution, of course, were restrictions upon the federal government, and not upon the states. The fourteenth amendment to the Constitution is, however, a restriction upon the states, and as to whether...

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