Ex parte Maxwell
| Decision Date | 05 August 1983 |
| Citation | 439 So.2d 715 |
| Parties | Ex parte Earl Wayne MAXWELL. (Re Earl Wayne MAXWELL v. CITY OF MOBILE). 82-563. |
| Court | Alabama Supreme Court |
Willis W. Holloway, Jr., Mobile, for petitioner.
J.D. Quinlivan, Jr., Mobile, for respondent.
This review is of the Court of Criminal Appeals' 439 So.2d 714 judgment affirming the conviction of Earl Wayne Maxwell for intentionally causing physical harm to another. We reverse.
The prosecution was brought by the City of Mobile in municipal court. Maxwell appealed to the Circuit Court of Mobile County for a trial de novo. In the circuit court, Judge Robert Hodnette found Maxwell guilty and sentenced him to imprisonment in the City of Mobile jail for six months (thirty days to be served with the balance suspended for a period of two years), a fine of $500, and restitution.
Appeal was made to the Court of Criminal Appeals based on the City's failure to plead and prove at trial the ordinance under which it prosecuted Maxwell. The Court of Criminal Appeals held that the
As expounded by Judge Bowen of the Court of Criminal Appeals, it is well established that in a criminal prosecution for violation of a city ordinance the city must plead and prove the ordinance. Cooper v. Town of Valley Head, 212 Ala. 125, 101 So. 874 (1924); Jacobs v. City of Prichard, 46 Ala.App. 497, 243 So.2d 769 (1971); Thompson v. City of Sylacauga, 30 Ala.App. 72, 200 So. 795 (1941). And it has been held when the city does not introduce the ordinance into evidence, it has failed to make out its case against the defendant and the trial court has erred in pronouncing the judgment of conviction. Jacobs v. City of Prichard, supra; Felder v. City of Huntsville, 42 Ala.App. 488, 168 So.2d 490 (1964); Thompson v. City of Sylacauga, supra.
Upon reviewing the record of the circuit court, we agree with the Court of Criminal Appeals that there is no question that the City of Mobile did not introduce the ordinance into evidence. Therefore, the matter on review here is whether the defendant's motion to exclude the evidence preserved the issue of the City's failure to prove the ordinance.
During the trial and after the close of the prosecution's case, the following took place:
(emphasis added)
It is well settled in Alabama that a motion to exclude evidence which does not state the grounds on which the motion is based is properly overruled. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Bell v. State, 19 Ala.App. 169, 95 So. 784 (1923); Allen v. State, 18 Ala.App. 346, 92 So. 18 (1922). In Bell and Allen the Court of Appeals upheld the lower court's actions overruling the motion to exclude evidence because the defendants stated no grounds.
In Espey, the appellant argued that the court erred in overruling his motion to exclude a statement made by the solicitor to the jury. Relying on Bell and Allen, this court said that "no ground was stated for the motion to exclude and the rule is that a motion to exclude without stating the grounds therefore is properly overruled." Espey v. State, 270 Ala. at 674, 120 So.2d 904. I...
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