Middlebrooks v. City of Birmingham
Citation | 170 So.2d 424,42 Ala.App. 525 |
Decision Date | 06 October 1964 |
Docket Number | 6 Div. 18 |
Parties | Larry MIDDLEBROOKS v. CITY OF BIRMINGHAM. |
Court | Alabama Court of Appeals |
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.
This is an appeal from a conviction, after verdict, for violation of § 1142 of the Code of the City of Birmingham 1944, 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. 1 The city would state them as follows:
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, and Shuttlesworth 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. See Smith 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
1 The appellant offers the following statement in his brief:
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Wright v. City of Montgomery, Alabama
...there must also be a showing of the accused's blocking free passage is the ratio decidendi * * *." Middlebrooks v. City of Birmingham, 42 Ala.App. 525, 527, 170 So.2d 424, 426 (1964). Cf. Shelton v. City of Birmingham, 42 Ala.App. 371, 165 So. 2d 912 (1964). Thus, we reach the same conclusi......
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Cox, In re
...the offense. * * * (T)here must also be a showing of the accused's blocking free passage. * * *' (Middlebrooks v. City of Birmingham (1964) 42 Ala.App. 525, 527, 170 So.2d 424, 426; see Shuttleworth v. Birmingham, supra, 382 U.S. 87, 91--92, 86 S.Ct. 211, Thus, in order similarly to save th......
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Golb v. Attorney Gen. of State
...Appeals of Alabama construed the statute narrowly, thereby avoiding constitutional overbreadth. See Middlebrooks v. City of Birmingham, 42 Ala.App. 525, 170 So.2d 424 (1964). Meanwhile, Shuttlesworth's ensuing appeal of his conviction worked its way to the United States Supreme Court. The C......
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People v. Deutsch
...the Shuttlesworth trial but before appeal to the Alabama Court of Appeals, the Alabama Court of Appeals, in Middlebrooks v. City of Birmingham (1964), 42 Ala.App. 525, 170 So.2d 424, expressly narrowed the construction of the Birmingham ordinance. Under this narrowed construction, mere refu......