Collins v. State

• Decision Date: 29 March 1928
• Docket Number: 4 Div. 373
• Citation: 218 Ala. 250,118 So. 265
• Parties: COLLINS v. STATE.
• Court: Alabama Supreme Court

118 So. 265

218 Ala. 250

COLLINS v. STATE.

4 Div. 373

Supreme Court of Alabama

March 29, 1928

Rehearing Denied June 28, 1928

As Modified on Further Denial of Rehearing, Oct. 25, 1928

Willis Collins was convicted of violating the prohibition law, and judgment of conviction was affirmed by the Court of Appeals (118 So. 264), and defendant brings certiorari. Writ denied.

Brown and Somerville, JJ., dissenting.

Brassell & Brassell, of Montgomery, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

On Rehearing.

THOMAS J.

1. There was no discontinuance of the prosecution in the law court of Pike county before the transfer of this case to the circuit court, pursuant to the terms of the consolidated court act. Gen.Acts 1915, p. 279. The due transfer of causes from the law court to the circuit court was provided by the act. And no mere neglect of the justice of the peace on the issuance of the warrant or the failure of the sheriff to execute that process will operate as a discontinuance. The authorities of this court are collected by Judge Foster in Roszell v. State, 19 Ala.App. 462, 98 So. 35.

2. Had there been a "discontinuance"--a gap or chasm in the proceedings after the suit or prosecution was pending--the voluntary act of defendant, appearing without due objection and pleading "not guilty" in the circuit court, was a waiver of any right of discontinuance if such existed. It is required of one to make due insistence and "take advantage of his rights," at the proper time, and a failure so to insist "will be considered a waiver." Ex parte Hall, 47 Ala. 675; Hall v State, 51 Ala. 9; Clanton v. State, 96 Ala 111, 113, 11 So. 299; Snyder v. State, 18 Ala.App. 188, 90 So. 40; Jones v. State, 16 Ala.App. 477, 478, 79 So. 151.

3. Under the provisions of the Constitution, the Legislature has the right to pass laws dispensing with a grand jury in case of misdemeanors. Const. § 8; Gaines v. State, 215 Ala. 362, 110 So. 601; Harris v. State, 215 Ala. 56, 58, 109 So. 291; Witt v. State, 130 Ala. 129, 30 So. 473; Roseberry v. State, 20 Ala.App. 450, 103 So. 898. That is to say, the Legislature had full power to regulate the trial of misdemeanors in a particular county, and to that end provide that, where prosecution for misdemeanors is begun by affidavit in the inferior court, upon demand for a jury, the case be transferred to the circuit court for such jury trial upon the complaint as made by affidavit and without action by the grand jury. In the Witt Case, supra, it is said:

"To so enact was fully within the power of the Legislature. The present Constitution, different in this respect from the Constitutions prior to that of 1865 ( Thomas v. State, 107 Ala. 61 ), excepts misdemeanors from its prohibition against proceeding criminally by information for indictable offenses, by providing that in cases of misdemeanors 'the General Assembly may by law dispense with a grand jury, and authorize such prosecutions and proceedings before justices of the peace or such other inferior courts as may be by law established.' Const. § 9, art. 1. The first clause of this proviso, giving power to dispense with a grand jury, is general, and applies to circuit courts, as well as other courts."

The proviso to section 8 of the Constitution of 1901 is the same, in respects here material, as that in section 9, art. 1, Const. of 1875, construed in the Witt Case. See, also, State v. Bush, 12 Ala.App. 309, 68 So. 492.

Since the Legislature could enact, as was done for Madison county, and sustained in Gaines v. State, supra, to the end that the clerk of the circuit court could issue an affidavit for misdemeanor returnable to and for trial in the circuit court, so may a justice of the peace, as was done in Pike county, be authorized to issue warrant for a misdemeanor, returnable to the law court for trial, and, after the abolition of that court, cases pending therein were made transferable to the circuit court. The jurisdiction of the circuit court was, therefore, properly sustained by the Court of Appeals, within the express provisions of special and general enactments of the Legislature, without doing violence to organic law. There was a provision of law for the initiation of the prosecution by affidavit, returnable to the law court of Pike county in Acts of 1888-89, p. 631, and after the abolition of such court for the transfer of pending causes to the circuit court. Gen.Acts 1915, p. 279.

In preparing the foregoing, it was thought unnecessary to do more than cite the cases of Witt v. State and Gaines v. State, supra, from this court, and those of Roseberry v. State and State v. Bush, supra, from the Court of Appeals, collecting and discussing the Constitution, statutes, and our cases. However, there is a conflict in our decisions, requiring a careful consideration of our cases that have a bearing on the question presented for decision. The cases cited by petitioner are:

Clark v. State, 46 Ala. 307, where the necessity for indictment in cases sent from the county court to the circuit court grew out of the fact that an indictment was the only mode provided by the statute for attaching the jurisdiction of the circuit court to such misdemeanor. The same observation was made in Frost v. State, 124 Ala. 71, 27 So. 550, and it was further stated that:

"There is no constitutional restriction upon the legislative power to dispense with indictments in cases of misdemeanors."

And the statutes authorizing the trial of misdemeanors without a jury are adverted to in Baader v. State, 201 Ala. 76, 78, 77 So. 370.

In Jones v. State, 149 Ala. 63, 43 So. 28, the affidavit was pursuant to the law before a justice of the peace and returnable to that official; hence the Walker law and equity court had no jurisdiction to try the case until indictment found, under defendant's demand for a jury trial or upon appeal after his trial in the justice court. The case did not get before the law and equity court under either of said methods provided by law, but on his demand for a jury trial was placed upon the trial docket for disposition upon the affidavit and warrant, and defendant duly objected, by way of demurrer and motion, to being tried until indictment was preferred, and this court sustained his insistence under the statute (section 4636 of the Code of 1896, and Acts of 1900, p. 112), giving the right of the Walker county law and equity court to try all misdemeanors (1) upon affidavit made before the judge of said court; or (2) upon affidavit made before a magistrate where the process is returnable to the law and equity court; (3) and upon indictments. Hence the law and equity court was without jurisdiction to proceed, where the process was returnable to the issuing magistrate's court and came to the latter by a demand for a jury and indictment.

The case of Lewis v. State, 160 Ala. 121, 49 So. 753, commenced in the mayor's court for misdemeanor, under the city ordinance, appealed to the circuit court, where the solicitor by complaint changed the charge to that of a violation of a statute of the state, held no authority of law for such procedure and radical departure in the circuit court. It is obvious that in such a case he could not be put upon trial for the violation of a statute of the state against his due objection, when he had not been duly charged (indicted) on his appeal to the circuit court.

In the case of Smith v. State, 165 Ala. 122, 124, 125, 51 So. 602, 603, defendant was tried for misdemeanor in the county court of Clay, upon affidavit and warrant sworn out before a justice of the peace, made returnable into the county court; he demanded a jury, and the issue of his guilt was submitted to a petit jury. In his appeal to this court, he renewed his complaint that the trial was illegal, in that it was "without an indictment found." Mr. Justice Sayre observed:

"By the Constitution it is provided that in cases of misdemeanor the Legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings before justices of the peace or such other inferior courts as may be by law established. ***

"As was pointed out in Clark v. State, 46 Ala. 307, and in Frost v. State, 124 Ala. 71, 27 So. 550, on the removal of a criminal prosecution from the county courts under the general law to circuit courts, occasioned by a demand for trial by jury, indictment becomes necessary to the jurisdiction of the last-named courts, for the reason that no other method of criminal proceeding in those courts is provided by statute. *** And section 24 provides that all cases of misdemeanors returned by justices of the peace--as was the case here--to the county court of Clay shall be tried upon the complaint of the solicitor, filed in the cause.

"In this case the trial was had upon the original affidavit, importing thereby, as we apprehend, the adoption by the solicitor of the affidavit as the state's complaint."

Petitioner's counsel ask: How could the circuit court of Pike county proceed to trial of petitioner without violating his constitutional right, safeguarded under section 7 of the Constitution? The answer is that he was accused, arrested, and detained in a case or for an offense against the criminal laws of the state, established and promulgated prior to the offense, and legally applied according to the form which the law has prescribed, by the affidavit and warrant returnable to the Pike county law court, that of the abolition of said court and the due transfer to the circuit court of all pending causes.

This observation of section 7 of the Constitution makes necessary its consideration with sections 8, 139, 143, of the Constitution. In section 143 is the provision that the circuit court shall have original jurisdiction in...