Guin v. City of Tuscaloosa

• Decision Date: 09 June 1925
• Docket Number: 6 Div. 688
• Citation: 106 So. 64,21 Ala.App. 61
• Parties: GUIN v. CITY OF TUSCALOOSA.
• Court: Alabama Court of Appeals

106 So. 64

21 Ala.App. 61

GUIN v. CITY OF TUSCALOOSA.

6 Div. 688

Court of Appeals of Alabama

June 9, 1925

Rehearing Denied June 30, 1925

Appeal from Circuit Court, Tuscaloosa County; Fleetwood Rice, Judge.

Prosecution by the City of Tuscaloosa against Murry Guin for violation of a city ordinance. From a judgment of conviction, defendant appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Guin, 106 So. 67.

Bricken P.J., dissenting.

William J. Foster, of Tuscaloosa, for appellant.

S.H Sprott and J.M. Ward, both of Tuscaloosa, for appellee.

RICE J.

The appellant, being first convicted in the recorder's court of violating an ordinance of the city of Tuscaloosa prohibiting the traffic, etc., in forbidden liquors, took an appeal to the circuit court, where the jury found him guilty and assessed a fine of $75. On sentence, the court imposed upon him an additional penalty of 6 months at hard labor for the city. This appeal, in addition to presenting other matters that we will later advert to, brings into question the authority of the court to impose the additional penalty where, as here, the jury imposed a fine only. In order to get this question behind us, and proceed to another of considerably more difficulty, we may say here that it would seem that the decision of the Supreme Court of our state in Thomas v. City of Mobile, 203 Ala. 96, 82 So. 110, is conclusive in this particular inquiry. The ordinance under consideration in that case is not distinguishable in the pertinent provisions from the ordinance under which this appellant was convicted, and under the authority of that case we hold that it was within the province of the judge trying this case in the court below to add the additional punishment of 6 months at hard labor for the city, and appellant can take nothing on this appeal from his assignment of error No. 3. For the guidance of others, it is just as well to say that, since the decision in the Thomas v. City of Mobile Case, supra, the holdings as to the right of the judge trying cases of this kind to impose additional hard labor as punishment, within the limits prescribed, laid down in Clark v. Town of Uniontown, 4 Ala.App. 264, 58 So. 725, Hannibal v. City of Mobile, 16 Ala.App. 625, 80 So. 629, Goldberger v. City of Mobile, 17 Ala.App. 145, 82 So. 635, and any other of our cases holding to a like effect, are overruled.

The ordinance introduced in evidence under which he was tried, the complaint, trial, and conviction of the appellant in the circuit court, were in our opinion in all things regular. In fact they are not seriously questioned on this appeal. The few exceptions reserved to the admission or rejection of evidence have each been examined, and are patently without merit. No insistence is made that there was error in the refusal of any written charge requested by appellant, as indeed there was none. The entire proceedings up to and through the judgment of conviction pronounced against the appellant were free from prejudicial error, and are here affirmed. We have seen above that the trial court was acting within his rights in sentencing the appellant to serve at hard labor for the city of Tuscaloosa for a period of 6 months, as punishment, additional to that assessed by the jury trying the case, and this action of the trial court is here affirmed.

The principal question remaining is as to the propriety of the trial court's action in sentencing the appellant (defendant) to a term at hard labor for the city of Tuscaloosa sufficient in which (fixing it) to work out the amount of fine and costs assessed against him in favor of said city at the rate of 40 cents per day. Appellant vigorously insists that there is no authority of law (no ordinance of said city providing any rate per day at which said fine and costs should be worked out, having been introduced in evidence upon the trial of the case) for such sentence. We will now consider briefly this proposition.

It is true neither the circuit court, in which this case was tried, nor this court, can take judicial notice of any ordinance of the city of Tuscaloosa, providing 40 cents per day or any other amount as the rate at which any fine and costs assessed against appellant, and not presently paid, or confessed with surety, should be worked out, if, indeed, there was any such ordinance. Excelsior Steam Laundry Co. v. Lomax, 166 Ala. 612, 52 So. 347. From the record before us, we cannot even know that there was such an ordinance, and the propriety of the sentence here brought in question must be considered without reference to any ordinance of said city. In other words, did the trial court, in the absence of ordinance, have the right to sentence the appellant (defendant) to a term at hard labor for said city sufficient in which to work out the fine and costs assessed against him in favor of said city at the rate of 40 cents per day?

Section 1936, Code 1923, provides:

"The recorder trying any person for violation of any by-law or ordinance of the city shall, upon conviction of such person, have the power to fine and imprison him and to sentence him to hard labor upon the streets or public works or in the workhouse or house of correction of the city; and, in the event the fine and costs are not presently paid, to require the offender or person thus in default to work out the fine and costs under the direction of the city authorities, allowing not exceeding one dollar for each day's service. ***"

Section 1937, Code 1923, provides that, on appeal from the recorder's court to the circuit court--

"*** the case appealed shall be tried de novo in such court, and the judge or jury trying such cause is authorized to impose upon the person convicted such punishment by fine, or imprisonment in the city jail, or other place of confinement, or hard labor for the city, or by fine and imprisonment, as the court or jury may deem proper and is authorized by law or ordinance for such offenses. ***" It is apparent, from a reading of the two sections of the Code of 1923 above quoted from, that the provision in section 1937 that the judge or jury on appeal "is authorized to impose upon the person convicted such punishment by fine," etc., "as the court or jury may deem proper and is authorized by law or ordinance for such offenses," has reference to the punishment proper, disassociated from any idea of costs, or the manner in which the fine and costs shall be collected. In other words, the ordinance

...