Myhand v. City of Dothan

• Decision Date: 03 April 1923
• Docket Number: 4 Div. 799.
• Citation: 95 So. 782,19 Ala.App. 167
• Parties: MYHAND v. CITY OF DOTHAN.
• Court: Alabama Court of Appeals

95 So. 782

19 Ala.App. 167

MYHAND v. CITY OF DOTHAN.

4 Div. 799.

Court of Appeals of Alabama

April 3, 1923

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Lilla Myhand was convicted of a violation of an ordinance of the City of Dothan, and she appeals. Reversed and remanded.

O. S Lewis, of Dothan, for appellant.

Reid &amp Doster, of Dothan, for appellee.

BRICKEN P.J.

The prosecution against this appellant originated in the mayor's court of the city of Dothan nd was for a violation of an ordinance of said city.

From a judgment of conviction in the mayor's court she appealed to the circuit court and was there tried by a jury, the trial resulting in the conviction of the defendant, and from the judgment of conviction in the circuit court this appeal is taken.

The assignments of error, three in number, are predicated upon the refusal of certain written charges requested by appellant.

The defendant requested the general affirmative charge in her behalf, which was refused by the court, and this ruling is made the basis of assignment No. 1.

It appears from the record, as well as in briefs of respective counsel, that this charge was requested upon the grounds of the insufficiency of the evidence upon which to base the verdict of guilt, and to sustain the judgment of conviction.

Under the statute, Code 1907, § 1451, an appeal to the circuit court from a judgment of conviction in a municipal court shall be governed in all respects by the laws regulating appeals from judgments of justices of the peace in criminal cases. And section 6744 of the Code 1907 provides that the trial in the circuit court on appeal from a judgment rendered by a justice of the peace shall be de novo.

While not expressly so stating, we gather from the record that the trial was had in the circuit court upon the original complaint and affidavit filed in the mayor's court. By consent of the accused, this is permissible.

It has been many times decided that courts do not take judicial knowledge of the ordinances of cities and towns. Benjamin v. City of Montgomery, 16 Ala. App. 653, 81 So. 145, and cases cited. This does not apply, however, to cities in this state which have a population of as much as 100,000 people according to the last federal census. Acts 1915, p. 294, § 7.

The record recites:

"Whereupon the city offered in evidence subdivision 3 section 246, which reads as follows: (3) Unlawful to Buy or Receive Prohibited Liquors.-It shall be unlawful to buy receive, accept or procure within the corporate or within the police jurisdiction thereof, or to have in possession for himself or for another, or for the joint use of himself and another, or to transport or convey on his person

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