Middlebrooks v. City of Birmingham

• Decision Date: 06 October 1964
• Docket Number: 6 Div. 18
• Citation: Middlebrooks v. City of Birmingham, 42 Ala.App. 525, 170 So.2d 424 (Ala. App. 1964)
• Parties: Larry MIDDLEBROOKS v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Appeals

Page 424

170 So.2d 424

42 Ala.App. 525

Larry MIDDLEBROOKS v.CITY OF BIRMINGHAM.

6 Div. 18.

Court of Appeals of Alabama.

Oct. 6, 1964.

Rehearing Denied Oct. 27, 1964.

Arthur Shores and Orzell Billingsley, Jr., Birmingham, Jack Greenberg, Norman C. Amaker and Geo. B. Smith, New York City, for appellant.

Wm. C. Walker, Birmingham, for appellee.

CATES, Judge.

This is an appeal from a conviction, after verdict, for violation of § 1142 of the Code of the City of Birmingham1944, as amended, whereunder Middlebrooks was convicted on a charge of standing or loitering so as to obstruct a street or sidewalk.

On his appeal from the recorder's court to the circuit court, the appellant had a choice which he exercised in favor of demanding a jury trial.Ex parte Hall, 255 Ala. 98, 50 So.2d 264;Code 1940, T. 37, § 464;T. 13, §§ 429, 326. '* * * a jury trial may there be had on demand of the defendant * * *.'§ 326, supra.

The city, in its brief, has in effect rejected the appellant's statement of the facts.¹The city would state them as follows:

'On May 3, 1963, Appellant and others participated in a parade.The parade was stopped at 6th Avenue and 17th Street North, Birmingham, Alabama.After the parade was broken up a group of about 100 to 150 people stood on the corner at 6th Avenue and 17th Street North.This group was composed partly of paraders, and partly of other people.The Appellant was in the front of the crowd, but he was within the front portion of the crowd.The street was about 50 feet wide, but contrary to Appellant's statement of fact the sidewalk was only about 8 or 10 feet wide and it was entirely blocked.No one could use the sidewalk because it was completely filled with people.Sergeant McDonald, a police officer, told the group they were blocking the sidewalk and to move back in both directions.The entire group, except for Appellant, moved away from the corner.Sergeant McDonald told the Appellant if he did not move he was going to arrest him for loitering after warning and refusing to obey the lawful command of a police officer.The Appellant did not move and was arrested.'

That all of the legitimate inferences to support a verdict will be indulged in favor of the appellee is a basic rule of appellate review.

Though we are not required to do so (since Code 1940, T. 15, § 389, does not apply), we have examined the entire transcript of testimony and conclude that the statement of facts by the city in its brief is within the realm of permissible fair deduction and inference from the evidence in the case.²

I.

This is the fourth case in the last year wherein this court has considered the second paragraph of § 1142, as amended.That provision is directed at obstructing the free passage over, on or along a street or sidewalk by the manner in which a person accused stands, loiters or walks thereupon.Our decisions make it clear that the mere refusal to move on after a police officer's requesting that a person standing or loitering should do so is not enough to support the offense.

That there must also be a showing of the accused's blocking free passage is the ratio decidendi of Phifer v. City of Birmingham, 42 Ala.App. 282, 160 So.2d 898, andShuttlesworth v. City of Birmingham, 42 Ala.App. 296, 161 So.2d 796.In this respect, we distinguish our reasoning from that employed by the Virginia Supreme Court of Appeals in Tinsley v. City of Richmond, 202 Va. 707, 119 S.E.2d 488.SeeSmith v. City of Birmingham, Ala.App., 168 So.2d 35.

The judges of this court in Shelton v. City of Birmingham, 42 Ala.App. 371, 165 So.2d 912, divided two to one as to whether or not evidence of a policeman ordering a defendant to move on under a similar ordinance was sufficient to make a prima facie case.Regardless of the quantum of proof required, the court in the instant case is again, as it was in the Shelton case, unanimous in its conclusion.³

The judgment below is due to be

Affirmed.

1The appellant offers the following statement in his brief:

'* * * appellant emerged from a church with a group of persons and proceeded down a street * * * to protest racial segregation.When the group reached a corner, it was stopped by a police officer who told the group to turn around and go back.At this time the appellant was standing on the edge of the group.There is a conflict in the record as to what subsequently occurred.The police officer testified that everyone in the group moved except the appellant.The appellant testified that he attempted to go around the officer and was arrested.He further stated that Commissioner Connor told the police officers at the scene to arrest him.When the arresting officer was asked if he arrested the appellant because of an order, or on his own volition, the state's objection was sustained.

'Although the arresting officer testified that the group was...