Green v. City of Demopolis

• Decision Date: 13 May 1924
• Docket Number: 2 Div. 292.
• Citation: 20 Ala.App. 115,101 So. 529
• Parties: GREEN v. CITY OF DEMOPOLIS.
• Court: Alabama Court of Appeals

101 So. 529

20 Ala.App. 115

GREEN v. CITY OF DEMOPOLIS.

2 Div. 292.

Court of Appeals of Alabama

May 13, 1924

Rehearing Denied June 24, 1924.

Appeal from Circuit Court, Marengo County; John McKinley, Judge.

Prosecution by the City of Demopolis against Tom Green for violation of a prohibition ordinance. From a judgment of conviction, defendant appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Green, 101 So. 531.

Benj. F. Elmore and Wm. F. Herbert, both of Demopolis, and I. I. Canterbury, of Linden, for appellant.

L. R. Wilson, of Demopolis, for appellee.

SAMFORD, J.

It is the law that municipal ordinances must be clear, certain, and duly promulgated. Kreulhaus v. City of Birmingham, 164 Ala. 623, 51 So. 297, 26 L. R. A. (N. S.) 492. The ordinance in the instant case meets that requirement, and the demurrer to the complaint filed by the city was properly overruled.

The book of ordinances of the city of Demopolis, being identified by the city clerk, who also testified to the custody and publication, and also to his certificate, was properly admitted in evidence. Vol. 10 Mitch. Dig. p. 61 (3). The provisions of section 1258 of the Code of 1907, as amended by Acts 1915, p. 735, relating to the recording of ordinances, is directory. Smith v. Town of Eclectic, 18 Ala. App. 329, 92 So. 212. The validity of the ordinance was sufficiently proven.

Whether the whisky was owned by defendant or not, if he had it in his possession at the time complained of, he would be guilty Moreover, charges 5 and 6 were not predicated on the evidence. For both of these reasons, charges 5, 6, and 7 were properly refused.

The evidence was in conflict, and hence the affirmative charge was properly refused.

The ownership of the house was collateral, and therefore it was competent to prove its ownership by one who knew the fact.

There is no error in the record, and the judgment is affirmed.

Affirmed.

On Rehearing.

Charges 5 and 6 requested in writing were not predicated upon a consideration of the evidence. Edwards v. State, 205 Ala. 160, 87 So. 179; Davis v. State, 188 Ala. 59, 66 So. 67; Cobb v. State, 19 Ala. App. 345, 97 So. 779; Stewart v State, 19 Ala. App. 389, 97 So. 684; Jones v State, 209 Ala. 655, 96 So. 867; White v. State, 209 Ala. 546, 96 So. 709; Riley v. State, 209 Ala. 505, 96 So. 599.

The application is overruled.