Batson v. State

CourtSupreme Court of Alabama
Citation113 So. 300,216 Ala. 275
Docket Number6 Div. 798
PartiesBATSON v. STATE ex rel. DAVIS, Solicitor.
Decision Date26 May 1927

Appeal from Circuit Court, Jefferson County; W.L. Parks, Judge.

Impeachment proceedings by the State of Alabama, on the relation of Jim Davis, Solicitor, against Stephen R. Batson, a member of the Board of Revenue of Jefferson County. From a judgment of impeachment, defendant appeals. Affirmed.

Hugh A Locke and S.R. Hartley, both of Birmingham, for appellant.

Willard Drake, Asst. Sol., of Birmingham, and O.R. Hood, of Gadsden for appellee.


The last trial resulted in verdict and judgment convicting appellant on the charge of "willful neglect of duty while in office as charged in information."

Appellant made motion for a new trial and to set aside the verdict and judgment, which was overruled. Said motion and judgment on the motion and exception reserved are set out in the bill of exceptions. There are many documents contained in the record proper purporting to be written charges; they are not indicated by indorsement as "Given" or "Refused" by the trial judge, as provided by statute to become a part of the record proper (section 9509 Code; Tuskaloosa County v. Logan, 50 Ala. 503; Little v. State, 58 Ala. 265; Mobile Saving Bank v. Fry, 69 Ala. 348; A.G.S.R. Co. v. Dobbs, 101 Ala. 219, 12 So. 770; Nuckols v. State, 109 Ala. 2, 19 So. 504), and they are not incorporated in the bill of exceptions, or made a ground of the motion for a new trial. It has long been declared that the party requesting such charges must have called the failure to the attention of the trial court before he can be heard to complain in this court of such action. Ala. Const. Co. v. Wagnon Bros., 137 Ala. 389, 34 So. 352; Barnewall v. Murrell, 108 Ala. 366, 18 So. 831; Fowler v. Pritchard, 148 Ala. 261, 269, 41 So. 667. The statement of the clerk injected into the record proper, to the effect that said charges in writing were requested by the defendant in the presence of the jury before it retired "and were refused by the court," is not a compliance with the statute and orderly procedure provided for a trial.

Affirmative instructions on both counts or specifications of the information are contained in said alleged charges, and will not be considered on this appeal. Barnewall v. Murrell, 108 Ala. 366, 18 So. 831; Ala. Const. Co. v. Wagnon Bros., 137 Ala. 389, 34 So. 352.

Appellant's insistences, made for the first time in this court, that the evidence supporting the averments in the information that he, as a member of the board of revenue, voted for the resolutions in question were not sufficient to justify his conviction, will not now be considered. The sufficiency of the evidence was not presented in the court below, included or urged in the main trial, nor on the hearing of the motion for a new trial. That is to say, so far as this record shows, appellee on the second trial did not employ any of the authorized methods of requiring the court to rule as to former pleading, or to instruct the jury on the effect or sufficiency of the evidence. Section 9507, Code; Goff v. Sellers (Ala.Sup.) 111 So. 210; S.A.L.R. Co. v. Savage (Ala.Sup.) 109 So. 748. There was no motion to exclude the evidence nor demurrer to the evidence. A proper exception or invocation or ruling is necessary to a review. Ex parte State ex rel. v. Smith, 204 Ala. 389, 85 So. 785; Anderson v. State, 209 Ala. 36, 95 So. 171.

The fact that an appeal was provided by section 4514 of the Code of 1923, and that no specific provision for new trial is found in the chapter on impeachment does not exclude such trial, required to "be proceeded with in all respects as civil actions at law are conducted," from the operation of the general statutes for new trials. The intent to strike down the power of the common-law courts, in the exercise of its inherent power to grant a new trial where seasonably made and on recognized grounds at common law, is not clearly evidenced in the statute. Woodward Iron Co. v. Brown, 167 Ala. 316, 52 So. 829; Ladd v. Stevenson, 112 N.Y. 325, 19 N.E. 842, 8 Am.St.Rep. 748; 29 Cyc. 722, 727, 759. That is to say, courts of record have inherent power independent of the statute to set aside and vacate their orders or judgments within the term and for common-law causes. 15 R.C.L. 688. The four months' statute (Code 1923, § 9521) has been expressly declared to be cumulative and concurrent, and not exclusive of equity jurisdictions. Ingram v. Ala. Power Co., 201 Ala. 13, 75 So. 304; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Harris v. Harris, 208 Ala. 20, 93 So. 841. And the statute, section 9518 of the Code, as observed by the codification thereof, is but the statement "of case law on the subject." And it is further established that it is necessary to a review to present by bill of exceptions the motion and evidence offered on that motion for a new trial that was granted the state, and also the decision granting the same. Birmingham Waterworks Co. v. Justice, 204 Ala. 547, 86 So. 389; Stokes v. Hinton, 197 Ala. 230, 72 So. 503. For this failure appellant is not entitled to review the ruling of the trial court in granting the state a new trial. The judgment or ruling on the state's motion for a new trial granting the same was in general terms in response to a motion therefor predicated on many grounds. The appellant, defendant, appealed to this court from such judgment or order, and after this court had acquired jurisdiction thereof the same was voluntarily dismissed by said appellant. That dismissal is reported as Batson v. State, 214 Ala. 696, 108 So. 919.

The failure or declination of appellant to prosecute that appeal and voluntarily procuring its dismissal by this court was a waiver of matters duly presented by that ruling and appeal therefrom. Sellers v. Dickert, 194 Ala. 661, 69 So. 604; Ala., etc., Co. v. Bates, 155 Ala. 347, 46 So. 776; McGeever v. Terre Haute Co., 201 Ala. 290, 78 So. 66. This is the general rule in the premises. 1 A.L.R. 725. It was applied in Ala., etc., Co. v. Bates, supra, as follows:

" 'The general rule is that on a second or subsequent appeal or writ of error the court will not consider matters assigned as error which arose prior to the first appeal or writ of error, and which might have been raised thereon, but were not, or matters appearing in the original record, which might have been corrected on the first hearing, but were not urged.' 3 Cyc. 398. This court will take judicial notice of the record in the former appeal of this identical case."

At the second trial and the refiling of the information, appellant did not invoke action of the court on the former motions--to strike and quash--or to demur to the information as amended and filed. The record recites that after the motion for a new trial had been granted the state, and the verdict and judgment of not guilty set aside, that on May 24, 1926, the issue was again called for trial, and defendant filed pleas of puis darrein continuance. These pleas were not verified as required by statute of pleas, "since the last continuance," and for this reason the demurrer was properly sustained thereto. Code of 1923, § 9471; A.G.S.R. Co. v. Loveman Co., 196 Ala. 683, 72 So. 311; Penn. v. Edwards, 50 Ala. 63.

Aside from the lack of verification, demurrer to said pleas was properly sustained. It was sought thereby to set up the defense of former jeopardy, because of the first trial and favorable verdict and judgment that was set aside by the court on motion of the state. The Bill of Rights, and its section 9 of the Constitution, only prohibited a person from being twice put in jeopardy of life or limb for the same offense. This did not apply to impeachment, though in some respects criminal. State ex rel. Atty. Gen. v. Robinson, 111 Ala. 482, 20 So. 30. The Legislature so understood, in giving the right of an appeal to the state in section 4514 of the Code. The statute gave the right to the unsuccessful party to appeal from a final judgment or decree--of conviction or acquittal in impeachment. Any other construction would render section 4514 of the statute offensive to section 9 of the Constitution. This is the view expressed in 1 Wharton's Criminal Law (11th Ed.) 513; 16 C.J. 236, § 6; People v. Miner, 144 Ill. 308, 33 N.E. 40, 19 L.R.A. 342, 343; Portland v. Erickson, 39 Or. 1, 62 P. 753. The demurrers were properly sustained to pleas of puis darrein continuance of former jeopardy presented and filed on date of the last trial of date of May 24, 1926, setting up the verdict of discharge or release by the jury after issue joined on the first trial, and which judgment was set aside by the granting of a new trial on due motion of the state.

The dismissal of the cases against other members of the board of revenue did not operate as a release or discharge of the defendant officer. Appellant's counsel admit the information did not charge a conspiracy. There was no charge of conspiracy in the finding of the grand jury as to the said member of the board of revenue; the grand jury charged that each official under his oath of office was responsible and impeachable under the law by the sovereign state. A conspiracy not being averred in information, proof thereof was not required; such are the general rules of pleading. 21 R.C.L. 436.

According to appellant's written notice of appeal, it was taken from the judgment on the last trial of date of May 27, 1926 and that overruling his motion for a new trial of date of July 27, 1926. Appellee's counsel well insist, and as we have indicated, that the original rulings and order on the first trial are not renewed and presented on the second trial for review. Having voluntarily dismissed and abandoned his former appeal, he is limited to...

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