Fletcher v. State

• Citation: 65 So. 683,11 Ala.App. 180
• Decision Date: 18 June 1914
• Docket Number: 251
• Parties: FLETCHER v. STATE.
• Court: Alabama Court of Appeals

65 So. 683

11 Ala.App. 180

FLETCHER
v.
STATE.

No. 251

Court of Appeals of Alabama

June 18, 1914

Rehearing Denied June 30, 1914

Appeal from City Court of Andalusia; Ed T. Albritton, Judge.

Shell Fletcher was convicted for illegally selling intoxicating liquors, and he appeals. Affirmed. [65 So. 684.]

W.L. Parks, of Andalusia, for appellant.

[11 Ala.App. 181] R.C. Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

WALKER, P.J.

As to prosecutions for violations of the state's prohibitive liquor laws, a defendant's right to demand a trial by jury is governed by the provision on the subject of the general law approved August 25, 1909, entitled "An act to further suppress the evils of intemperance," etc. (Acts Special Session 1909, p. 63, § 32), and not by a provision on that subject applicable to other classes of cases in the court in which the prosecution is pending, such as the provision for waiving a trial by jury contained in section 12 of the "act to create and establish the Andalusia city court of law and equity" (Local Acts of Ala. 1911, p. 315), which does not purport to affect or repeal the provision of the general law above referred to. Moss v. State, 3 Ala.App. 189, 58 So. 62.

Under that provision of the general law, if the prosecution is begun in a court in which jury trials are provided, a defendant who gives bond waives the right to a trial by jury unless "at the time he gives bond within five days thereafter" he "file in the cause a demand for trial by jury." In the instant case the only thing that was done which was claimed to constitute a compliance with the requirement of the general statute was that the defendant wrote on his appearance bond, after the sheriff's certificate of approval thereof, the following: "I, Shell Fletcher, defendant in this case, prefer a jury. September 8, 1913." It was not made to appear when, if ever, that bond was filed in the court after that statement was written upon it, or that that statement in any [11 Ala.App. 182] way became a part of the file in the cause. Whether what was written could or could not be construed as a demand for a trial by jury, it was ineffectual because of the failure to deposit it with the clerk, the legal custodian of papers in the cause, or to bring it to his notice, within the time allowed, for the purpose of having it filed. Phillips, Goldsby & Blevins v. Beene's Adm'r, 38 Ala. 248; Ex parte State, 51 Ala. 69.

No error is found...