Nelson v. City of Roanoke, 5 Div. 825.

• Citation: 135 So. 312,24 Ala.App. 277
• Decision Date: 20 January 1931
• Docket Number: 5 Div. 825.
• Parties: NELSON v. CITY OF ROANOKE.
• Court: Alabama Court of Appeals

135 So. 312

24 Ala.App. 277

NELSON v. CITY OF ROANOKE.

5 Div. 825.

Court of Appeals of Alabama

January 20, 1931

Rehearing Denied May 5, 1931.

Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.

Elliott Nelson was convicted of violating an ordinance of the City of Roanoke, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Nelson v. City of Roanoke (5 Div. 94) 135 So. 314.

Hooton & Moon, of Roanoke, for appellant.

Vann & Boyd, of Roanoke, for appellee.

SAMFORD J.

This case being quasi criminal, on appeal to this court the rules requiring assignments of error and insistence of error in brief obtain, and errors not insisted on in brief of counsel for appellant are waived and will not be considered.

The evidence for the city tends to prove that defendant, within the corporate limits of Roanoke and within sixty days before the beginning of the prosecution, violated an ordinance of the city, which ordinance reads:

"Ordinance No. 223. Section 1: Be it ordained by the City Council of the City of Roanoke, that any person or persons committing an offense in the City of Roanoke, or within the Police Jurisdiction of the City of Roanoke, which is declared by any law or laws of the State of Alabama, heretofore or hereafter enacted, to be a misdemeanor shall upon conviction be punished by a fine not exceeding One Hundred Dollars ($100.00) and may be sentenced to imprisonment in the municipal jail or to hard labor for the City of Roanoke not exceeding six (6) months."

The specific charge being that the defendant sold, offered for sale, possessed, had in his possession, or otherwise disposed of prohibited liquors, etc.-with reference to assignment No 1, it is insisted in brief that the court committed reversible error in refusing to give at the request of defendant the general affirmative charge, for the reason that the chief of police for Roanoke disguised himself and with two other parties accompanying him bought a Nehi bottle full of whisky from defendant. To sustain this contention, the appellant invokes the doctrine referred to in Trimble v Town of Haleyville, 20 Ala. App. 13, 101 So. 523. The doctrine spoken of in that case has no application here. There is no evidence here that the chief of police procured defendant to violate the law. According to the evidence, not only by the chief of police but by another, the defendant acted on his own volition in making the sale of the prohibited liquor. On this question the cases of Tucker v. Tuscaloosa, 21 Ala. App. 274, 107 So. 325, and Wilks v. State, 21 Ala. App. 199, 106 So. 681, are in point.

Assignment No. 2 takes the point that the verdict of the jury was error, in that it fixed both a fine and hard labor. The language of the ordinance makes provision for a fine and also for imprisonment in jail or hard labor for the city. Under the ordinance, on conviction, a fine must be imposed and imprisonment or hard labor may be added. On appeal from a recorder's court to the circuit court under and by virtue of section 1937, Code 1923, on conviction the judge or jury trying the cause is authorized to impose upon defendant punishment by fine or imprisonment or hard labor for the city as "the court or jury may deem proper and is authorized by law or ordinance for such offense." The verdict in this case was not error. Thomas v. City of Mobile, 203 Ala. 96, 82 So. 110.

For the reasons above given, assignment of error No. 3 is of no avail.

We may consider assignments of error 4 to 15, both inclusive, for the reason that they all relate to the same character of defense.

The practice of entrapping persons into crime for the purpose of instituting criminal proceedings has frequently been deplored, and expressions condemning the practice are to be found in certain classes of cases, notably in Smith v State, 61 Tex. Cr. R. 328, 135 S.W. 154. Instigation as distinguished from entrapment has sometimes been held to prevent the act from being criminal or punishable, but the general...