Chaney v. City of Birmingham

• Citation: 32 Ala.App. 4,21 So.2d 268
• Decision Date: 28 November 1944
• Docket Number: 6 Div. 121.
• Parties: CHANEY v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Appeals

21 So.2d 268

32 Ala.App. 4

CHANEY v. CITY OF BIRMINGHAM.

6 Div. 121.

Alabama Court of Appeals

November 28, 1944

Rehearing Denied Jan. 9, 1945.

Wm Conway, of Birmingham, for appellant.

Ralph E. Parker, of Birmingham, for appellee.

BRICKEN Presiding Judge.

The important and controlling questions (two in number), involved in this case, and properly presented, are dealt with according to the views of the writer, as follows:

This appeal is from a judgment of conviction against appellant in the circuit court of Jefferson County on complaint filed in said circuit court by the City of Birmingham in a case pending in said circuit court on appeal from the Recorder'sCourt, wherein said City was the plaintiff and appellant, Jim Chaney, was defendant.

It is shown by the record proper that the judgment appealed from was pronounced and entered on the 16th day of February, 1944 and that the appeal was taken and perfected on the 23rd day of February, 1944, when the appeal bond was approved and filed.

These facts are referred to for the reason that by an Act of the Legislature of Alabama, approved July 12, 1943, Bills of Exceptions were abolished, which act, by Section 6 thereof became effective on September 1, 1943. Gen.Acts Alabama Regular Session 1943, p. 423, Code 1940, Tit. 7, § 827(1) et seq. Blair v. Greene, Adm'x, Ala.Sup., 18 So.2d 688.

A bill of exceptions is incorporated in the transcript before us and there are 8 assignments of error upon this record; Nos. 1 to 8, respectively. Assignments of error 2, 2 'A,' 3, 4, 5, 6, 7 and 8 are based upon, and are dependent upon, said bill of exceptions. Said last numbered assignments of error being based upon a bill of exceptions which had been abolished by law before the trial of this case in the court below, present no question that this court may properly consider.

Assignment of error No. 1, presents for our consideration the judgment of the trial court upon the demurrers filed by the defendant to the complaint. This assignment of error being based upon the record proper correctly presents for our consideration and determination the error complained of in assignment of error No. 1, which is as follows: 'For that the court erred in overruling the demurrers filed by appellant to the complaint filed by the appellee.'

The complaint charged the defendant with the violation of Ordinance 258 F. of the City of Birmingham, designated as the lottery law of the City. The defendant demurred to said complaint upon nineteen separate and several grounds. Ground 5 is as follows: 'Said complaint is not based on affidavit, sworn complaint, or warrant as required by law.'

The 6th ground of said demurrer is as follows: 'For that the City seeks to place defendant on trial upon the mere statement of the City attorney, unsupported by affidavit, warrant, or other legal process.'

If any affidavit, or sworn complaint was ever filed either in the Recorder's Court, where said prosecution was begun, or in the circuit court to which said prosecution was carried on appeal, the same does not appear in the record before us.

Section 5725 Birmingham Code 1930, provides that when a person is arrested with or without a warrant for violation of any city ordinance or law, it is the duty of the arresting officer to forthwith carry such person before the Recorder's Court, or to deliver him to the city warden to be carried before said court by him, to be dealt with according to law.

Upon this appeal it is contended by the City of Birmingham, insofar as the question now being considered is concerned, that the insistence of the appellant that the complaint was not sworn to, or that the same was not based upon a sufficient affidavit, is without merit. It is urged that the right to have a sworn complaint or warrant may be waived and is so waived if not applied for.

This insistence upon the part of the appellee is founded upon the pronouncements of both our Supreme Court and this court in the cases of Borok v. City of Birmingham, 191 Ala. 75, 67 So. 389, Ann.Cas.1916C, 1061, and cases there cited; and in Clark v. City of Uniontown, 4 Ala.App. 264, 58 So. 725, and the cases therein referred to. Under the recited facts of those cases the rule declared is undoubtedly correct, but a different question is here presented for the reason that this record does not affirmatively show, nor does it show by necessary inference, that the defendant waived his right to a sworn complaint in the Recorder's Court, or that he otherwise precluded himself from demanding a sworn complaint, of affidavit upon which a complaint might be legally predicated, upon the trial de novo on appeal to the circuit court.

There should have been filed in the court below a transcript of the record of the Recorder's Court and it was necessary for that transcript to show everything necessary to constitute a legal conviction. It was necessary for it to show the affidavit and warrant, or other legal process, upon which the prosecution was commenced; a valid arrest, and that the defendant had an opportunity of being heard and that the judgment of the Recorder's Court was duly entered. 43 C.J. p. 481, § 711.

The only information this court has as to the proceeding in the Recorder's Court against the appellant, is contained in the recital of the appeal bond, set out in the record before us. The appeal bond recites that 'the above bounden principal, Jim Chaney, was tried and convicted on the charge of count 1, violating lottery law. Count 2, Ord. 258 F. Sec. 5053-CC. Count 3 * * *.'

In the case of the Town of Camden v. Bloch, 65 Ala. 236, 240, our Supreme Court said:

'The omission of the affidavit and warrant from the record under which Bloch, the appellee, was arrested and tried before the intendant, was a defect, for which a motion to quash would properly lie. The record could not be aided or supplemented by extrinsic parol evidence.'

If the defendant was arrested without a warrant by some policeman, or other arresting officer of the City of Birmingham, surely he had the right when the case came on to be tried in the Recorder's Court to demand the nature and cause of the accusation, and the transcript should have so shown, or that he waived the right of a complaint, or accusation, by simply pleading not guilty to whatever charge was docketed against him in the Recorder's Court and that he had the opportunity of being heard in that court.

In the case of Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406, 407, our Supreme Court, dealing with an analogous question to the one before us on this appeal said:

'But when an appeal is allowed by statute from the judgment of an inferior court to a superior court, where the case is to be tried de novo, a different situation is presented. A trial de novo means a new trial 'as if no trial had ever been had, and just as if it had originated in the circuit court.''

The Supreme Court in said case, supra, further cited with approval the case of Kraker v. Superior Court. etc., 15 Cal.App. 651, 115 P. 663, and quoted therefrom the following:

'When an appeal from the judgment of a justice's court is taken and duly perfected, by a defendant, upon both questions of law and fact, the case is removed to the superior court for a trial de novo, and the superior court must try the case as if there had been no trial in the justice's court. In such case, the appeal being fully perfected, the plaintiff is the actor in the superior as he was in the justice's court, and it is his duty to bring the case on for trial, and no duty in that respect devolves upon the defendant, although he is the appealing party.'

In the case of City of Selma v. Stewart, 67 Ala. 338, our Supreme Court declared that the proceedings in a Mayor's Court could not be summarily disposed of for any mere defect, other than a want of jurisdiction apparent on the face of them, when made for the first time in the city court, to which the appeal was taken. In that case, said the court:

'The proper practice, in appeals of this character, has been indicated in Williams v. Hinton, 1 Ala. 297. It is to require the plaintiff to file a statement of the case, and thereupon to raise any question as to its legal sufficiency, or the jurisdiction of the justice, by demurrer. This preserves, in its full integrity, to the accused, the constitutional right guaranteed to him by § 7, of Art. 1, of the Const., 'to demand the nature and cause of the accusation' against him 'in all criminal prosecutions."

In the case of Horn v. State, 22 Ala.App. 459, 117 So. 283, 284, this court, dealing with a question similar in character to the one presented on this appeal, said:

'A defendant has a constitutional right to demand the nature and cause of the accusation against him, and this complaint of the solicitor is the method provided by the Legislature to meet this demand. Its function is to inform the defendant with what he is charged and is the accusation he is called to defend. Nonetheless, this complaint must have for its basis a valid foundation and must rest upon a charge supported by affidavit as required by law. Miles v. State, 94 Ala. 106, 11 So. 403.'

The case of Grissett v. City of Birmingham, 28 Ala.App. 138, 181 So. 302, is not in conflict with what we have hereinabove said. In the Grissett case the docket entries are all copied into the opinion as well as the judgments of the Recorder's Court, and what was said in paragraph 2 of the Grissett case can have no application here for the reason that there are no docket entries from the Recorder's Court set out in the record in the case at bar.

Upon what proceedings in said Recorder's Court the appellant was there tried and convicted, this record does not show. Whether or not he demanded...