City of Birmingham v. O'Hearn

• Decision Date: 20 December 1906
• Citation: 42 So. 836,149 Ala. 307
• Parties: MAYOR, ETC., OF CITY OF BIRMINGHAM v. O'HEARN.
• Court: Alabama Supreme Court

42 So. 836

149 Ala. 307

MAYOR, ETC., OF CITY OF BIRMINGHAM v. O'HEARN.

Supreme Court of Alabama

December 20, 1906

Appeal from Criminal Court, Jefferson County; Dan. A. Greene, Judge.

J. E O'Hearn was acquitted in the criminal court on a charge of having violated an ordinance of the city of Birmingham and the mayor and aldermen of the city appeal. Reversed corrected, and, as corrected, affirmed.

E. D Smith and J. Q. Smith, for appellant.

Gaston & Pettus, for appellee.

TYSON C.J.

The appellee was arrested by a police officer of the city of Birmingham without a warrant for violating an ordinance of said city making vagrancy an offense. No complaint of any kind was filed in the police court charging him with this offense. He was forced to submit to a trial against his objections, simply upon a statement entered upon the docket of the police judge, showing his alleged offense to be that of violating section 622 of the City Code, coupled with the oral statement of the police judge that section 622 of the City Code defined the offense of vagrancy and provided for its punishment. The judge, in response to defendant's demand for a copy of the accusation against him and to know the nature of the accusation, offered to furnish to his counsel a copy of the docket entry, which was refused, because insufficient and not in compliance with law. Upon the court's refusal to furnish a complaint, or any further copy of the accusation than the copy of the docket entry, the defendant's discharge was demanded and denied. After the conviction, on appeal, the question of the right and jurisdiction of the police court to proceed in the manner indicated above was raised and adjudged by the appellate court to have been erroneous, resulting in the discharge of the defendant.

It will scarcely be doubted that, if a written complaint was necessary in the police court to a proper hearing and determination of the case, the statement of the cause of the complaint filed by the attorney for the municipality in the appellate court was totally ineffectual to supply the defect. Miles v. State, 94 Ala. 106, 11 So. 403; Butler v. State, 130 Ala. 127, 30 So. 338. Nor can it be doubted that the entry upon the docket of the police judge was entirely wanting in the essential requisites of a complaint, should it be conceded that the entry could, under any circumstances, perform the office of a complaint. So then, the correctness of the rulings here sought to be reversed are dependent upon the solution of the question whether the defendant was entitled, upon demand, to be apprised of the nature and character of the proceeding instituted against him by a written complaint. If the proceeding was for the prosecution of a criminal offense, the right "to demand the nature and cause of the accusation and to have a copy thereof" was secured to him by the Constitution. Article 1, § 6, of the Constitution of 1901; City of...