Miles v. State
| Decision Date | 23 June 1892 |
| Citation | 11 So. 403,94 Ala. 106 |
| Parties | MILES v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Russell county; J. M. CARMICHAEL, Judge.
Harrison Miles was convicted of the offense of defamation, and appeals. Reversed.
L W. Martin and John V. Smith, for appellant.
Wm. L. Martin, Atty. Gen., for the State.
The defendant was put upon trial and convicted in the county court upon complaint made under oath before a justice of the peace, and upon which the warrant of arrest issued. From the judgment of conviction the defendant appealed to the circuit court. The statute provides that "the trial of appeal in the circuit or city court shall be de novo, and without indictment or presentment by the grand jury; but the solicitor shall make a brief statement of the cause of complaint, signed by him." When the case came on for trial in the circuit court, the defendant demurred to the affidavit made for his arrest, and the court sustained the demurrer. After judgment of the court sustaining the demurrer to the affidavit, against the objection of the defendant, the solicitor, by leave of the court, filed a statement of the cause of complaint, and the defendant was put upon trial upon this statement. Mere inaccuracies or imperfections in the proceedings before the county court cannot be taken advantage of on appeal to the circuit court, where the trial is de novo, but this rule cannot be extended so as to authorize the arrest of a person, and subject him to a prosecution in the circuit court upon a mere statement of the solicitor, unsupported by an affidavit which charges an offense, and which affidavit is insufficient to authorize the issue of a warrant of arrest. The statute under which the prosecution began (Code, § 4204) provides as follows: "A party aggrieved or desiring to bring a charge of misdemeanor before the county court may apply to the judge thereof or to some justice of the peace of the county for a warrant of arrest; and upon making affidavit in writing that he has probable cause for believing, and does believe, that an offense (designating the misdemeanor by name, or by some other phrase which, in common parlance, designates it) has been committed in said county," etc. The statute clearly provides that the offense must, in some way, be designated either by name, or there must be such a statement of facts in the affidavit as to enable the justice of the peace or judge to determine that an offense is charged. The constitution of the state protects persons from arrest, unless there is probable cause, supported by affidavit. An affidavit so defective in this respect as not to charge an offense does not authorize the issue of warrant of arrest, and furnishes no foundation for a prosecution to conviction upon the affidavit or statement of complaint by the solicitor.
The offense for which defendant was tried is "defamation." The language of the affidavit is that "one Harrison Miles did falsely and maliciously speak of and concerning J. W. Robinson, in the presence of Sim Sapp imputing...
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