Kreutner v. State

• Decision Date: 09 April 1918
• Docket Number: 3 Div. 307
• Citation: 16 Ala.App. 553,80 So. 127
• Parties: KREUTNER v. STATE.
• Court: Alabama Court of Appeals

80 So. 127

16 Ala.App. 553

KREUTNER v. STATE.

3 Div. 307

Court of Appeals of Alabama

April 9, 1918

Rehearing Denied May 14, 1918

Majority Opinion Nov. 26, 1918

Appeal from Circuit Court, Montgomery County; A.B. Foster, Judge.

Henry Kreutner was convicted of a violation of the Prohibitory Liquor Law, and appeals. Reversed and remanded.

See also, 80 So. 125.

Goodwyn & McIntyre, of Montgomery, for appellant.

F. Loyd Tate, Atty. Gen., and David W.W. Fuller, Asst. Atty. Gen for the State.

BROWN P.J.

The defendant was convicted on an indictment in the circuit court of Montgomery charging in several counts violations of the prohibition laws. The trial was before the court without the intervention of a jury, and the question of controlling importance presented by this appeal is whether the provisions of section 2 of the act approved September 28, 1915, entitled "An act to regulate and prescribe the method of securing jury trials in civil cases at law and in misdemeanors, and to prescribe how such causes shall be tried without the intervention of a jury and reviewed" (Acts 1915, pp 939, 940), or whether the provisions of section 32 of the act approved January 23, 1915, commonly known as the enforcement law (Acts 1915, pp. 8-35), governs in respect to the waiver of trial by jury in this case. If the case is governed by the act of September 28th, it is conceded that the rulings of the trial court with respect to defendant's demand for trial by jury were erroneous and must work a reversal of the judgment. On the other hand, if the failure to demand a trial by jury as required by section 32 of the enforcement statute effected a waiver by the defendant of the right of trial by jury, and that statute is applicable to trials for violations of the prohibition laws of this state in the circuit courts then the rulings of the court were correct.

The enforcement law was first enacted by the Legislature at the special session 1909 (page 63), and was commonly known as the "Fuller Law," and was re-enacted by the Legislature of 1915. Section 32 of the act of 1915 is an exact copy of the same section found in the act of 1909, and is in the following language:

"That all prosecutions for a violation of any provision of this act, or of any other act, now or hereafter enacted, for the suppression of the evils of intemperance, or of an act to promote temperance and to suppress the evils of intemperance, and to prohibit the manufacture, sale, offering for sale, keeping or having for sale or otherwise disposing of prohibited liquors and beverages and keeping unlawful drinking places may be begun by affidavit as well as by indictment and that when begun by affidavit the person charged shall not have the right to demand that a grand jury shall prefer indictment for the alleged offense, but the prosecution may continue no matter in what court or before what judge the trial shall be had upon the affidavit upon which it was originally begun, and the said affidavit or any complaint that may be filed in such prosecution may be amended to meet the end of justice and to prevent a dismissal of the case upon any informality, irregularity or technicality. If the prosecution is begun in a court in which jury trials are provided for, the defendant may at the time he gives bond or within five days thereafter file in the cause a demand for trial by jury, or if he does not give bond he may within five days after his arrest file in the court a demand for a jury trial, in which event such jury trial shall be allowed. If the prosecution is begun before a court or judge as to which or whom no provision is made for a jury trial, the court or judge of it or he has jurisdiction to try the case and to find a party charged guilty or not guilty, shall proceed with the trial, and if the party charged is convicted, he may appeal to the circuit court or other court of record of like jurisdiction in the county, having jurisdiction in cases of appeal from the county court or from a judgment of a justice of the peace, in such form and in such manner and subject to such restrictions as govern appeals under the Code of Alabama from such justices of the peace or county court, and the party may demand and be entitled to a jury trial in such higher court under the same terms and conditions that jury trials are obtainable in cases of appeals from such justices of the peace or county court to said circuit court or other court of like jurisdiction; but this section shall not alter the practice in respect to any preliminary proceeding, authorized by law before a justice of the peace. Nor is it intended hereby to take away from the circuit court of any county any exclusive jurisdiction it may have to try cases against and to punish violators of prohibitory liquor laws, and any circuit court that may have exclusive jurisdiction of any law applicable to the county to try cases against and to punish violators of prohibitory or other anti-liquor laws shall continue to have its present jurisdiction, and shall have such exclusive jurisdiction of violations of this act or of acts hereinabove referred to and all other laws of this state for the suppression of intemperance and the promotion of temperance." Acts 1915, § 32, p. 32.

We have italicized the pertinent provisions of this section that relate to the demands for trial by jury. Appellant's first contention is that the statute does not provide that the failure to demand trial by jury as there provided operates to waive the right of trial by jury. This provision of the statute as it appeared in the Fuller Law was construed by this court in Moss v. State, 3 Ala.App. 191, 58 So. 63, where it was said:

"The defendant not having demanded a trial by jury within the time allowed for that purpose [80 So. 128] [16 Ala.App. 554] by the general law which was applicable, the court was not in error in adjudging that he [the defendant] had waived the right to a trial by jury."

And in subsequent decisions, both this court and the Supreme Court, give this statute a like interpretation. Wilson v. State, 10 Ala.App. 156, 64 So. 509; Alford v. State ex rel. Attorney General, 170 Ala. 178, 54 So. 213; Hauser v. State, 6 Ala.App. 31, 60 So. 549; Fletcher v. State, 11 Ala.App. 180, 65 So. 683; s.c., 188 Ala. 1, 66 So. 148; Frazier v. State, 11 Ala.App. 286, 66 So. 879; Brown v. State, 75 So. 174; s.c. reviewed by Supreme Court, 76 So. 995; Baader v. State (Sup.) 77 So. 370. All of these decisions except the two last cited antedate the adoption of the statute by the Legislature of 1915, so, if there was room for doubt as to the effect of failure to demand a trial by jury as required by the statute, this doubt has been removed by the subsequent adoption of the statute without change, which under the repeated rulings of the courts effected an adoption of the statute, together with the construction given to it by the courts. Huffman v. State, 29 Ala. 40; Anthony v. State, 29 Ala. 27; Ex parte Banks, 28 Ala. 28.

The next contention of appellant is that while there was a field of operation for both of these statutes, when the latter was passed, the provisions of section 32 of the enforcement law were only applicable to trials in courts other than the circuit courts of the state, and that the latter statute must be construed to govern in the trial of all misdemeanor cases in the circuit court, including prosecutions for violations of the prohibition laws. This contention necessarily contemplates that an exception must be written into one or the other of these statutes by judicial interpretation, and of course, because it suits his case, he insists that the exception should be written into the act of January 23d, so as to make that act apply to the trial of prosecutions for violations of the prohibition law in all courts except the circuit courts. The reason urged as a basis for this interpretation is that these statutes, dealing as they do with the waiver of the right of trial by jury, must be liberally construed in favor of the accused, and strictly against the state, and that the act of September 28, 1915, is more liberal in respect to the time allowed to the accused for filing a request for trial by jury, than the act of January 23d; the contention being that the one allows the accused 30 days, while the other only allows 5 days, to file the request for trial by jury.

For the purpose of showing that appellant's premise is not correct, we parallel the provisions of the two statutes:

The act of September 28, 1915, provides:

"That the issue and question of fact shall be tried by the judge of the court without the intervention of a jury, except in causes where a trial by jury is demanded in writing by the defendant, and such written demand filed in the cause with the clerk of the court on, or before the first sounding of the cause if the cause is sounded within thirty days after the defendant has been arrested or taken into custody after the finding of the indictment, *** and if such cause is not sounded within thirty days after the defendant has *** been arrested or taken into custody after the finding of the indictment, then such written demand must be filed with the clerk within thirty days after the defendant has *** been arrested or taken into custody after the finding of the indictment." Acts 1915, p. 940, § 2.

The act of January 23, 1915, provides:

"If the prosecution is begun in a court in which jury trials are provided for, the defendant may at the time he gives bond or within five days thereafter file in the cause a demand for trial by jury, or if he does not give bond he may within five days after his arrest file in the court a demand for a jury trial, in which event such jury trial shall be allowed." Acts 1915, p. 32, § 32.

Under the act of ...