Anthony v. City of Birmingham, 6 Div. 536.
| Decision Date | 30 April 1940 |
| Docket Number | 6 Div. 536. |
| Citation | 198 So. 446,29 Ala.App. 549 |
| Parties | ANTHONY v. CITY OF BIRMINGHAM. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 29, 1940.
Affirmed on Mandate Nov. 6, 1940.
Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.
Sam L Anthony was convicted of violating an ordinance of the City of Birmingham, and he appeals.
Reversed and remanded.
Certiorari granted by Supreme Court in Anthony v. City of Birmingham, 6 Div. 724, 198 So. 449.
Morel Montgomery, of Birmingham, for appellant.
Ralph E. Parker, of Birmingham, for appellee.
It appears from the allegations of the pleadings in this case that Sam L. Anthony, the appellant, was tried in the Recorder's Court of the City of Birmingham, Alabama, for the violation of City Ordinance No. 258-F, and also for the violation of section 5053 of the City Code of said City. This trial was had in the month of July, 1938. On said trial said Anthony was adjudged guilty of the offense charged against him by the Recorder's Court and was by said court assessed a fine and also sentenced to hard labor for the City. That said Anthony was thus placed in jeopardy cannot be successfully denied. It needs no citation of authority to show that he was in jeopardy for the offense charged against him when he was arraigned and tried in the Recorder's Court of the City of Birmingham because the principle is elementary.
Anthony appealed from the above mentioned judgment of conviction to the circuit court, where at the instance of the City said prosecution, then pending on appeal in said circuit court was terminated and disposed of by an order of nolle prosequi made and entered by the circuit court of Jefferson County, on February 2, 1939. This order of nolle prosequi was a final disposition of the prosecution against Sam L. Anthony which was first heard in the Recorder's Court of said City, in the month of July, 1938.
After the above order of nolle prosequi had been granted and entered at the instance of the City of Birmingham by the circuit court, said City again caused the said Anthony to be again arrested on identically the same charge, based upon identically the same facts and evidence as that for which he was tried in said Recorder's Court in the month of July, 1938, and was caused by said City to be again arraigned on February 16, 1939, on said charge and plead thereto in said Recorder's Court. On this arraignment the said Anthony interposed his plea of former jeopardy occasioned by his trial in said Recorder's Court in the month of July, 1938, for this same offense. Said plea of former jeopardy was overruled and denied by said Recorder's Court, and said Anthony was again convicted of said offense and was by the court adjudged guilty thereof and a fine was assessed against him. He was also sentenced by said court to hard labor for the City for a period of 180 days. From the last judgment of conviction, and sentence, he again appealed to the circuit court. On this second appeal the said Anthony on June 5, 1939, interposed his plea of former jeopardy setting up the judgment of conviction which had been pronounced against him by said Recorder's Court of the City of Birmingham in the month of July, 1938, together with the charges and facts upon which said judgment was pronounced against him. The City filed a replication to this plea of former jeopardy in which it averred that notwithstanding the allegation of the defendant's plea of former jeopardy, and notwithstanding the facts and matters therein alleged, the circuit court ought not to be excluded from taking cognizance of the prosecution then pending on appeal from the Recorder's Court--"for that the defendant was convicted in the Recorder's Court of the City of Birmingham on to-wit July 1938 and appealed said conviction to the Circuit Court of Jefferson County where on to-wit Feb. 2, 1939--said cause was nolle prossed and then and there defendant was arrested and tried again in Recorder's Court Feb. 16, 1939 from which conviction defendant appealed to the Circuit Court of Jefferson County, Alabama, and said appeal case is the identical appeal case now pending before the Court, all of which the assistant City Attorney is ready to verify, and he prays that the defendant may answer said complaint filed by the City in this cause," as averred in said replication.
If we correctly understand the averments of the above replication, they mean that when the defendant appealed from the judgment of conviction against him by the Recorder's Court of the City of Birmingham in July, 1938, to the circuit court, the defendant thereby waived his right to plead former jeopardy for a subsequent prosecution by said City on that identical charge, based upon that identical evidence and those identical facts, or estopped himself from so pleading.
The defendant filed a demurrer to said replication, assigning various grounds of demurrer, among which are the following: (1) Said replication is no answer to said plea, (3) said replication is an admission of the facts set out in said plea, (5) said replication is not a defense to said plea. The trial court overruled the demurrers to said replication, and this action of the court is assigned as error in assignment 3.
The appellee, in support of the judgment of the trial court upon said demurrer, says: "The City's replication alleged that the defendant appealed from the judgment of former conviction and set up in the defendant's plea and that the appealed case in the circuit court had been nolle prossed."
The case of Biggers v. State, 20 Ala.App. 632, 104 So. 681, is cited by appellee in support of its replication and of the correctness of the trial court upon the demurrer filed by the defendant against said replication.
In the Biggers case, supra, one Walter Biggers was first arrested and tried upon an affidavit and warrant upon a charge of resisting an officer in attempting to serve or execute a search warrant. He was tried for this offense in the county court of Geneva County, and upon his trial he was convicted by said county court. He appealed from that judgment to the circuit court of Geneva County and while said appeal was pending, the said Walter Biggers was indicted by the grand jury of said county for the offense of assault with intent to murder. The indictment was probably founded upon the same facts as those upon which the charge of resisting an officer was based. The State took an order of nolle prosequi in the case pending in the circuit court of Geneva County upon the appeal taken by said Biggers from the judgment of conviction pronounced against him by the county court of said county. When said Biggers was arraigned upon the indictment charging him with assault with intent to murder, he interposed his plea of former jeopardy based upon his prior conviction in the county court for the...
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