Billups v. City of Birmingham

Decision Date03 October 1978
Docket Number6 Div. 755
Citation367 So.2d 518
CourtAlabama Court of Criminal Appeals

William Conway, Birmingham, for appellant.

Rowena M. Crocker, Asst. City Atty., Birmingham, for the City of Birmingham, appellee.

BOWEN, Judge.

This is an appeal from a conviction in the Circuit Court of Jefferson County for a violation of Article XXV, Section 3, of the Zoning Regulations of the General City Code of the City of Birmingham, Alabama, concerning nonconforming uses. A jury assessed a fine of twenty-five dollars against the appellant and the trial judge imposed an additional sentence of sixty days hard labor.


Initially the appellant contends that he was tried on his appeal in the Circuit Court on a charge different from the one on which he was convicted in the Recorder's Court. Therefore, he argues, the Circuit Court was without jurisdiction.

We find this contention unsupported by the facts before this Court. The appellant was initially charged by an affidavit of complaint issued in the Recorder's Court and citing a violation of Article XXV, Section 4, of the city zoning ordinance. 1 At a hearing on the very issue now under review, both the city prosecutor and the municipal judge testified that the appellant was actually tried in Recorder's Court on an amended complaint charging a violation of Section 3 of the same code. 2

While the appellant alleges that the judgment entry of the Recorder's Court discloses that he was tried on Section 4, the trial judge specifically found, after hearing evidence on this matter, that regardless of what the judgment entry showed, the appellant was actually tried, convicted, and sentenced under Section 3. The judgment entry is not before this court on appeal. From the record before us and the findings of the trial judge, which are amply supported by the facts, the appellant was tried on the same charge in both the Recorder's Court and the Circuit Court. The jurisdiction of the Circuit Court is therefore beyond question.


The appellant asserts that the action of the Circuit Court trial judge in declaring a mistrial because of the weather was without authority of law.

The bench notes of the Circuit Judge reflect the following.

"January 19, 1978. Motion to strike Complaint and Demurrer overruled. Jury struck, sworn, nonsequestered and Defendant pleads not guilty. Cole, J.

"January 23, 1978. This case was partially in completion 1/19/78 when we adjourned for the day. Overnight and next day snow and ice developed and Court adjourned that day and next day, and everything was closed Friday and Saturday. Returning today only 3 Jurors came in and all rest unaccounted for or called in but not to come in. It is a manifest necessity that a mistrial be declared, a retrial is not precluded and the case is set at the top of the Docket for February 21, 1978. Cole, J."

In overruling the plea of former jeopardy based on this discharge, the judgment entry of the trial court states:

"This the 21st day of February, 1978, came Rowena Crocker, Assistant City Attorney, who prosecutes for the City of Birmingham, and also came the defendant in his own person and by his attorney, William Conway, defendant files Plea of Former Jeopardy and same being duly considered and it appearing to the Court that defendant failed to appear when snow fell on January 19th and 20th, 1978, it is therefore ordered, adjudged and decreed by the Court that Plea of Former Jeopardy be and same is hereby overruled."

Section 9 of the Alabama Constitution of 1901 provides

"That no person shall, for the same offense, be twice put in jeopardy of life or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain an advantage by reason of such discharge of the jury."

The reasons fixed by law for the discharge of juries are set forth in Section 12-16-233, Code of Alabama 1975. The trial judge may discharge the jury and declare a mistrial when

"in the opinion of the court or judge, there is a manifest necessity for the discharge or when the ends of justice would otherwise be defeated." Section 12-16-233, Code.

Thus the statute fixes the reasons for a discharge and wisely leaves it to the opinion or discretion of the trial judge to determine whether a reason really exists. Andrews v. State, 174 Ala. 11, 56 So. 998 (1911); Brewer v. State, 24 Ala.App. 410, 137 So. 454 (1931). While the trial judge may not fix the reason for the discharge, he is authorized to determine whether the reason as fixed by law actually exists. Andrews, supra.

"Examples of proper manifest necessity have arisen from: illness of prisoners, jurors, judges . . . ; death of a juror, the judge or a near relative of either; tardily disclosed disqualification of a juror not consented to; misconduct of a juror or bailiff; mental incapacity or intoxication of a juror. (citations omitted)." Parham v. State, 47 Ala.App. 76, 79, 250 So.2d 613, 615 (1971).

We think Section 12-16-233 must function in light of the practical aspects of the trial court. Time and time again the courts have refused to formulate rigid or mechanical rules governing the circumstances under which a trial judge may declare a mistrial without giving rise to a defense of double jeopardy. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). The very vagueness of the manifest necessity and ends of justice formulation, while maintaining the variety of the test, necessarily makes application imprecise. United States v. Grasso, 552 F.2d 46, 51 (2nd Cir. 1977). Virtually all double jeopardy cases turn on the particular facts. Illinois v. Somerville, supra.

In our opinion the argument advanced by the City has merit. The issues before the trial court concerned a zoning violation a somewhat complicated matter which required the application of technical terms and definitions to conflicting facts. The record itself best demonstrates the confusion which arose during the trial over the terms "nonconforming" and "nonconforming use". In order to render a fair verdict it was necessary that the jury have a clear and accurate understanding of these terms. An unexpected and unavoidable four day break in the appellant's trial may very well have clouded that understanding.

The legal reasons for the granting of a mistrial are not aimed at giving any party an advantage. The function of the measure is not to aid the accused or hinder the city, but rather to afford the accused a fair trial and accomplish the ends of justice. Under the circumstances enumerated in the bench notes and judgment entry it was within the proper discretion of the trial judge to determine that the severe weather conditions and the absence of the jury created a case of manifest necessity for the discharge.


The appellant claims that it was error for the trial judge to deny his plea of former jeopardy without submitting the issue to a jury.

The general rule is that the accused is entitled to a jury trial on the issues of fact raised by his plea of former jeopardy. Inman v. State, 39 Ala.App. 496, 104 So.2d 448 (1958); Lovejoy v. State, 32 Ala.App. 110, 22 So.2d 532, cert. denied, 247 Ala. 48, 22 So.2d 537 (1945); Slayton v. State, 31 Ala.App. 622, 21 So.2d 122 (1945); Evans v. State, 24 Ala.App. 390, 135 So. 647 (1931). Ordinarily it is the duty of the court to hear evidence on a plea of former jeopardy and submit the same to the jury; and the jury must find whether or not the plea is true in advance of the issue of not guilty. Kilpatrick v. State, 46 Ala.App. 290, 241 So.2d 132 (1970). It is not for the court to decide in advance that a plea sufficient on its face cannot be established and, if the facts set forth are sufficient in law, it is error for the court to strike or overrule it on motion of the prosecution, or on its own motion, without giving the accused an opportunity to submit his evidence in support thereof. Berland v. City of Birmingham, 36 Ala.App. 488, 60 So.2d 377, cert. denied, 257 Ala. 571, 60 So.2d 378 (1952); Jackson v. State, 340 So.2d 1141 (Ala.Cr.App.), cert. denied, 340 So.2d 1142 (Ala.1976).

"When a plea is regularly interposed it is subject to either a demurrer or motion to strike, and if neither is interposed issue must be taken on the plea. A court is without authority to overrule such plea without giving the party interposing the plea an opportunity to submit his evidence in support thereof."

Berland, 36 Ala.App. 489, 60 So.2d 378.

Generally the court cannot of its own motion overrule a plea of former jeopardy for a defect therein, or on facts within the personal knowledge of the judge, no demurrer, motion, or pleading being interposed thereto and no evidence produced. Coburn v. State, 151 Ala. 100, 44 So. 58 (1907); Evans v. State, 24 Ala.App. 390, 135 So. 647 (1931). Yet in overruling a plea of former jeopardy without a jury, the trial court may take judicial cognizance of its own records. Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284 (1953).

However where the issue presented by the plea is only a matter of law, the judge need not submit that issue to the jury.

"When the plea on its face shows that the question raised by it is a matter of law and not of fact, as where the facts are admitted and only a question of law remains, . . . , it is a question for the court alone, which should pass on the question of law properly presented and either sustain the plea and discharge accused or overrule the plea and place him on trial on the merits."

22 C.J.S. Criminal Law § 446(b).

Whether the plea raises a question of fact or a question of law depends on the circumstances of the particular case. Thomas v. State, 23 Ala.App. 438, 126 So. 610 (1930).

The plea of former jeopardy based on the granting of a mistrial...

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16 cases
  • Story v. State, 5 Div. 659
    • United States
    • Alabama Court of Criminal Appeals
    • November 23, 1982
    ...there is no need to submit that issue to a jury. Duncan v. City of Birmingham, 384 So.2d 1232 (Ala.Cr.App.1980); Billups v. City of Birmingham, 367 So.2d 518 (Ala.Cr.App.1978), writ quashed, 367 So.2d 524 (Ala.1979). The determination of this issue is within the province of the trial judge.......
  • Spears v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 15, 1994
    ...864 (1913); Blevins v. State, 20 Ala.App. 229, 101 So. 478, cert. denied, 211 Ala. 615, 101 So. 482 (1924)." Billups v. City of Birmingham, 367 So.2d 518, 522 (Ala.Cr.App.1978), cert. quashed, 367 So.2d 524 The judgment of the circuit court is affirmed. AFFIRMED. All Judges concur. 1 Althou......
  • Clancy v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 27, 2003
    ...issue should not be submitted to a jury. Duncan v. City of Birmingham, 384 So.2d 1232 (Ala.Crim.App.1980); Billups v. City of Birmingham, 367 So.2d 518, 522-23 (Ala.Crim.App.1978). See also Washington v. State, 818 So.2d 411, 418 (Ala.Crim.App.2000); Spears v. State, 647 So.2d 15, 24 II. Cl......
    • United States
    • Alabama Court of Criminal Appeals
    • September 21, 2001
    ...there is no need to submit that issue to a jury. Duncan v. City of Birmingham, 384 So.2d 1232 (Ala.Cr.App.1980); Billups v. City of Birmingham, 367 So.2d 518 (Ala.Cr.App.1978), writ quashed, 367 So.2d 524 (Ala.1979). The determination of this issue is within the province of the trial judge.......
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