Mays v. City of Prattville
| Decision Date | 04 August 1981 |
| Docket Number | 3 Div. 338 |
| Parties | Paul Leonard MAYS v. CITY OF PRATTVILLE. |
| Court | Alabama Court of Criminal Appeals |
Kenneth Shinbaum and W. Clarence Atkeinson, Prattville, for appellant.
Theron O. McDowell, Jr. and J. Myron Smith, Prattville, for appellee.
Appellant was arrested on July 19, 1980, by the City of Prattville Police Department in Prattville, Alabama, and charged with driving while intoxicated. He was tried in the Municipal Court of the City of Prattville on September 22, 1980, and was found guilty and fined two hundred fifty dollars ($250.00) and fourteen dollars ($14.00) in court costs. Appellant appealed to the Circuit Court of Autauga County, Alabama, for a trial de novo.
The City of Prattville filed the complaint signed by the City Attorney against appellant with the Circuit Court of Autauga County on October 1, 1980. The complaint read as follows:
"The City of Prattville, Alabama, a municipal corporation organized and existing under the laws of the State of Alabama, by its attorney, complains that, on or about the 19th day of July, 1980, within twelve months prior to the commencement of this prosecution, and within the corporate limits or the police jurisdiction of said City: Paul Leonard Mays did operate a motor vehicle upon Kerlin Drive while intoxicated in violation of Section 32-5A-191, Code of Alabama, 1975, contrary to the provisions of a valid existing ordinance of the City of Prattville, Alabama, duly adopted and ordained by the City Council of said City, prior to the commission of said act or acts, and prescribing the punishment for violations thereof."
Appellant demurred to the complaint on the basis that § 32-5A-191 of the Code of Alabama (1975) which the complaint referred to was not in effect on July 19, 1980, and that the complaint fails to set out the provisions or the substance of the ordinance appellant was to have violated. Appellant's demurrer was denied. He claims on appeal that denial of his demurrer was error.
Appellant entered a plea of not guilty. In a trial by jury he was found guilty and fined two hundred fifty dollars ($250.00). At the trial the City of Prattville introduced into evidence a certified copy of the ordinance which appellant allegedly violated. The relevant portion of that ordinance provides:
The complaint attempted to charge appellant with violation of § 32-5A-191 of the Code of Alabama (1975) (1980 Cumulative Supplement) which was adopted by a City ordinance of the City of Prattville, Alabama. § 13-5A-191 was enacted as part of the Alabama Rules of the Road Act, 1980 Alabama Acts, No. 80-434, p. 604. The Alabama Rules of the Road Act became effective on the 90th day after May 19, 1980, which was August 17, 1980. When appellant was arrested, § 32-5A-191 of the Code of Alabama (1975) (1980 Cumulative Supplement) was not in effect.
Appellant contends on appeal that, because § 32-5A-191 was not in effect, it was error to deny his demurrer. In addition to enumerating § 32-5A-191, the complaint also specified that appellant "did operate a motor vehicle upon Kerlin Drive while intoxicated." § 32-5-170 of the Code of Alabama (1975) was in effect at the time of appellant's arrest. § 32-5-170 makes it unlawful for any person who is intoxicated to drive a motor vehicle upon any highway of the state. The elements set forth in the complaint charged appellant with violation of § 32-5-170 even though the complaint mistakenly specified § 32-5A-191.
Where the complaint sets forth full information of the nature of the offense, mis-recital of the code section does not render the complaint void if the information set forth constitutes an offense under any statute. Allen v. State, 33 Ala.App. 70, 30 So.2d 479. See: Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162. If the information in the complaint adequately informs the accused of the nature of the offense he was charged with committing, then the reference to the code section is mere surplusage.
The complaint by the City of Prattville, however, does not set forth in substance the provisions of the ordinance, nor the ordinance number or name which appellant was to have violated. The complaint only generally refers to the ordinance by the words: "... contrary to the provisions of a valid ordinance of the City of Prattville, duly adopted and ordained by the City Council of said city ...."
In Miles v. City of Montgomery, 17 Ala.App. 15, 81 So. 351, the late Justice Brown, then Presiding Judge of the Court of Appeals, said:
In the case of Town of Lineville v. Gauntt, 20 Ala.App. 135, 136, 101 So. 154, 155, it was stated:
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