Brooks v. City of Birmingham, 6 Div. 47.

• Citation: 20 So.2d 115,31 Ala.App. 579
• Decision Date: 14 November 1944
• Docket Number: 6 Div. 47.
• Parties: BROOKS v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Appeals

20 So.2d 115

31 Ala.App. 579

BROOKS v. CITY OF BIRMINGHAM.

6 Div. 47.

Alabama Court of Appeals

November 14, 1944

Rehearing Denied Nov. 28, 1944.

Wm Conway, of Birmingham, for appellant.

Ralph E. Parker, of Birmingham, for appellee.

Assignment 3 relates to the overruling of defendant's motion to exclude the evidence. Assignments 5 and 6 are predicated upon the refusal of the affirmative charge for defendant. Assignment 10 is that the court erred in passing sentence upon defendant based upon illegal and prejudicial testimony.

The following charges were refused to defendant:

'1. If the jury believe from the evidence that the witness Abe Goldstein has falsely testified and wilfully so as to a material part of his evidence before them, then they may disregard his evidence entirely, and in that event, they should acquit the defendant.'

'N-5. The court instructs the jury that in order to warrant a conviction on circumstantial evidence it is necessary to prove

each circumstantial fact beyond a reasonable doubt; circumstantial evidence from which an inference of their existence may be drawn by the jury is not sufficient; one presumption of fact cannot be based upon another and where circumstantial evidence consist of a number of connected and interdependent facts and circumstances is like a chain which is no stronger than its weakest link; and if any link is missing or broken then the continuity of the chain is destroyed and its strength wholly fails, and where the evidence is entirely circumstantial and fairly permits an inference consistent with the defendant's innocence, it will not support a conviction, and you should find the defendant not guilty.'

CARR Judge.

This case originated in the Recorder's Court of the City of Birmingham, Alabama, where appellant was convicted for the violation of a city ordinance which may be generally termed a lottery law. He appealed to the circuit court of said county and, upon judgment of conviction and sentence there, he appealed to this court.

In the circuit court the city attorney filed a complaint as follows 'Comes the City of Birmingham, Alabama, a municipal corporation and complains that George Brooks within twelve months before the beginning of this prosecution and within the police jurisdiction of said City of Birmingham, Alabama did possess tickets, writings, papers, slips, documents, or memorandum of a kind which are customarily or usually used in the operation of a lottery, policy game, or other game of chance, contrary to and in violation of Ordinance #258-F, adopted by the Commission of the City of Birmingham, Alabama, January 25, 1938.'

To this complaint appellant filed a motion to strike and also demurrers, both of which were overruled by the trial court. This ruling occasions the insistence of appellant's Assignments of Error 1 and 2.

With minor exceptions both methods of attacking the complaint raise the same questions and therefore will be treated jointly.

It is insisted that the complaint is not sufficient. The identical question was before this court in the very recent case of Stinson v. City of Birmingham, 20 So.2d 113, wherein we held contra to the contentions of appellant. We see no occasion or necessity for repetition here.

It is also urged that the complaint is not founded on a warrant or sworn complaint and the city seeks to put the appellant to trial upon the mere statement of the city attorney unsupported by affidavit.

The record in the case shows only the appeal bond from the recorder's court to the circuit court so far as the proceedings in the recorder's court are indicated.

Sec. 6, Article I of our State Constitution confers certain rights, protections and privileges to persons accused of criminal infractions. It is the grave duty of all courts to vigilantly and cautiously safeguard these sacred securities. This section of the Constitution does not attempt to prescribe the method and manner of procedure in criminal trials. It is left to the Legislature to regulate forms or practice of the courts. In this, of course, the Constitution may limit the legislative authority. In the interpretation of these legislative enactments our courts have consistently held that in cases where these privileges are not exercised in conformity to the prescribed rules of practice the accused will be charged with having waived his constitutional favors. No one should be privileged to take advantage of his own default when it is beyond the power of the court to correct the insistence. There is no distinction between criminal and quasi-criminal cases in this particular. Barron v. City of Anniston, 157 Ala. 399, 48 So. 58.

In the case of McKinstry v. City of Tuscaloosa, 172 Ala. 344, 54 So. 629, 630, it is held: 'A party accused of a violation of a municipal ordinance is entitled in the municipal court 'to be apprised of the nature and character of the proceeding instituted against him by a written complaint.' Mayor and Aldermen of Birmingham v. O'Hearn, 149 Ala. 307, 42 So. 836 [13 Ann.Cas. 1131]. But, if one so accused proceed to trial without demanding, in the municipal court, a written complaint, setting forth the accusation against him, he must be held to have waived the right and cannot for the first time avail of it on appeal.' (Emphasis ours.) In the case of Aderhold v. Mayor and City Council of Anniston, 99 Ala. 521, 12 So. 472, the court had under consideration the action of the trial court in overruling a motion to strike the complaint and demurrers filed thereto in the city court. It is there stated: 'Not having raised these objections in the recorder's court, but having there voluntarily appeared to answer the charge, and having pleaded and gone to trial, the defendant waived them, if they existed, and could not raise them for the first time in the city court, on a motion to quash.' It appears that the holding in this case is conclusive of the contention here.

To like effect are the following cases: Borok v. City of Birmingham, 191 Ala. 75, 67 So. 389, Ann.Cas.1916C, 1061; Clark v. City of Uniontown, 4 Ala.App. 264, 58 So. 725; Trimble v. Town of Haleyville, 20 Ala.App. 13, 101 So. 523; Turner v. Town of Lineville, 2 Ala.App. 454, 56 So. 603; Fealy v. City of Birmingham, 15 Ala.App. 367, 73 So. 296; Blankenshire v. State, 70 Ala. 10; Johnson v. State, 105 Ala. 113, 17 So. 99; Driskill v. State, 45 Ala. 21.

We hold, therefore, that the motion to strike and the demurrers to the complaint were correctly overruled.

The testimonial evidence for ...