Guin v. City of Tuscaloosa, 6 Div. 688

CourtAlabama Court of Appeals
Writing for the CourtRICE, J.
Citation106 So. 64,21 Ala.App. 61
Docket Number6 Div. 688
Decision Date09 June 1925
PartiesGUIN v. CITY OF TUSCALOOSA.

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. [106 So. 65]

[21 Ala.App. 62] 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...

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13 practice notes
  • Clark v. City of Mobile, 1 Div. 843
    • United States
    • Alabama Court of Criminal Appeals
    • February 7, 1978
    ...novo, see Diane Yarbrough v. City of Birmingham, Ala.Cr.App., 353 So.2d 75, 1977, wherein we said: "In Guin v. City of Tuscaloosa, 21 Ala.App. 61, 106 So. 64, 66, certiorari denied, 213 Ala. 685, 106 So. 67, the Court held that a 'trial de novo' means that the Circuit Court 'assumes co......
  • Nix v. City of Andalusia, 4 Div. 215
    • United States
    • Alabama Court of Appeals
    • June 15, 1926
    ...judge or jury trying the case on appeal to the circuit court, but those questions are now settled. Guin v. City of Tuscaloosa (Ala.App.) 106 So. 64. [21 Ala.App. 440] Under the law as it now stands the power is with the trial judge to fix the punishment, and, if the verdict of the jury, fin......
  • Johnson v. City of Jasper, 6 Div. 972
    • United States
    • Alabama Court of Appeals
    • January 10, 1950
    ...a limitation on the discretion of the circuit court on appeal to impose the additional hard labor sentence. Guin v. City of Tuscaloosa, 21 Ala.App. 61, 106 So. 64; O'Flynn v. City of Selma, 21 Ala.App. 185, 106 So. 393; Harris v. City of Tuscaloosa, 21 Ala.App. 374, 108 So. 768; Harris v. C......
  • Jackson v. City of Demopolis, 2 Div. 422.
    • United States
    • Alabama Court of Appeals
    • October 29, 1929
    ...and sentence in this respect was erroneous. This point has been ruled against appellant in the case of Guin v. City of Tuscaloosa, 21 Ala. App. 61, 106 So. 64, in which it is held that the circuit court, in view of Code, §§ 1936 and 1937, is authorized to require defendant to work out fine ......
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13 cases
  • Clark v. City of Mobile, 1 Div. 843
    • United States
    • Alabama Court of Criminal Appeals
    • February 7, 1978
    ...novo, see Diane Yarbrough v. City of Birmingham, Ala.Cr.App., 353 So.2d 75, 1977, wherein we said: "In Guin v. City of Tuscaloosa, 21 Ala.App. 61, 106 So. 64, 66, certiorari denied, 213 Ala. 685, 106 So. 67, the Court held that a 'trial de novo' means that the Circuit Court 'assumes co......
  • Nix v. City of Andalusia, 4 Div. 215
    • United States
    • Alabama Court of Appeals
    • June 15, 1926
    ...judge or jury trying the case on appeal to the circuit court, but those questions are now settled. Guin v. City of Tuscaloosa (Ala.App.) 106 So. 64. [21 Ala.App. 440] Under the law as it now stands the power is with the trial judge to fix the punishment, and, if the verdict of the jury, fin......
  • Johnson v. City of Jasper, 6 Div. 972
    • United States
    • Alabama Court of Appeals
    • January 10, 1950
    ...a limitation on the discretion of the circuit court on appeal to impose the additional hard labor sentence. Guin v. City of Tuscaloosa, 21 Ala.App. 61, 106 So. 64; O'Flynn v. City of Selma, 21 Ala.App. 185, 106 So. 393; Harris v. City of Tuscaloosa, 21 Ala.App. 374, 108 So. 768; Harris v. C......
  • Jackson v. City of Demopolis, 2 Div. 422.
    • United States
    • Alabama Court of Appeals
    • October 29, 1929
    ...and sentence in this respect was erroneous. This point has been ruled against appellant in the case of Guin v. City of Tuscaloosa, 21 Ala. App. 61, 106 So. 64, in which it is held that the circuit court, in view of Code, §§ 1936 and 1937, is authorized to require defendant to work out fine ......
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