Bell v. State

• Citation: 22 So. 453,115 Ala. 87
• Parties: BELL v. STATE.
• Decision Date: 09 June 1897
• Court: Alabama Supreme Court

22 So. 453

115 Ala. 87

BELL v. STATE.

Supreme Court of Alabama

June 9, 1897

Appeal from circuit court, Madison county; John H. Sheffey, Special Judge.

Tom Bell appeals from a conviction of carrying a concealed pistol. Reversed.

The indictment in this case, under which the appellant, Tom Bell was tried and convicted, charged that defendant carried a pistol concealed about his person. When the case was called for trial, a plea of former conviction was interposed. The plea showed that the defendant had "already been twice arraigned and twice fined for the very same and identical offense with which he now stands indicted before this court." It alleged that the offense with which defendant was charged was a misdemeanor, of which the several justices of the peace of the Huntsville precinct, and "of which the mayor of the city of Huntsville," had original concurrent, and final jurisdiction with the circuit court. In addition to these allegations, as originally filed, it alleged that defendant "was arrested on the 23d day of November, 1896, and thereafter, on the 25th day of November 1896, was tried before said mayor; was fined; both fine and costs having been paid, was thereupon discharged." It then alleged that defendant was afterwards arrested by the sheriff of Madison county, and carried before one R. P Whitman, justice of the peace, and by him fined the sum of $100, and sentenced to 60 days' imprisonment in the county jail. A copy of the commitment of said justice of the peace was set out in the plea. It was directed to the jailer of Madison county, and directed him to hold the body of Thomas Bell until discharged by expiration of sentence. To the plea as originally filed, the state filed a demurrer, the first ground of which was sustained by the court. It was in these words: "The counsel for the state demurs to the defendant's plea filed in the cause, and for cause of demurrer says that defendant does not allege that he was tried before the mayor of the city of Huntsville, Alabama, as ex officio justice of the peace. The defendant then amended his plea, so as to make it show that he was tried before the mayor, as mayor of the city of Huntsville. Thereupon the state demurred to the plea as amended, assigning only one ground, which was: "The state, by its attorney, demurs to the plea of defendant, as amended, filed in the case, and for reason of demurrer, says said plea shows on its face that the justice of the peace who is alleged to have tried this particular case had no jurisdiction, because the case had been tried by the mayor of Huntsville, and therefore could not be tried afterwards by a justice of the peace, other than the mayor, acting ex officio in that capacity." This demurrer was sustained by the court. The defendant then pleaded not guilty, and, being found guilty by the jury, made a motion in arrest of judgment, and alleged, as grounds, the action of the court in sustaining the demurrers above set forth. The court overruled the motion. The errors relied on by appellant are the action of the court below in sustaining the two grounds of demurrer above...