Owens v. State
| Decision Date | 12 February 1924 |
| Docket Number | 6 Div. 261. |
| Citation | 19 Ala.App. 573,99 So. 155 |
| Parties | OWENS v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Dewey Owens was convicted of vagrancy, and appeals. Reversed and remanded.
Beddow & Ray, of Birmingham, for appellant.
Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen for the State.
The appellant here, defendant in the court below, was convicted of being a vagrant. The prosecution was begun by affidavit and warrant in the Jefferson county court of misdemeanors. From a judgment of conviction in that court, the defendant appealed to the circuit court, was again convicted, and from the judgment of conviction in the circuit court this appeal is taken.
The act of the Legislature establishing the Jefferson county court of misdemeanors was approved on September 10, 1919. Local Acts of Alabama, 1919, p. 121 et seq. Section 30 of said act provides that appeals from judgments of conviction rendered by said court may be taken by the defendant to the circuit court of Jefferson county within five days after the rendition of said judgments and in the manner as is provided by law for appeals to be taken from the county courts of this state to the circuit courts of this state, and a jury trial may be had on demand of defendant as provided by law, and all appeals taken as herein provided for shall be tried de novo and be preferred cases in said circuit court, and shall be governed in all respects by the rules and regulations provided by law for the trial of appeals in the circuit courts from the county courts of this state, in so far as the same may be applicable.
The statute provided that, in appeals from the county court to the circuit court, "the solicitor shall make a brief statement of the cause of complaint, signed by him," etc. (Code 1907, § 6730), and it has been expressly held that in the absence of a waiver by the defendant, which must affirmatively appear by the record, the omission to file such complaint by the solicitor constitutes reversible error. Moss v. State, 42 Ala. 546; Haynes v. State, 5 Ala. App. 167, 59 So. 325; Kirkham v. State, 18 Ala. App. 426, 93 So. 56; Peeples v. State, 17 Ala App. 430, 84 So. 859; Perry v. State, 17 Ala. App 80, 81 So. 858; Howard v. State, 17 Ala. App. 9, 81 So. 345; Collins v. State (Ala. App.) 98 So. 488.
It appears from the record here that the defendant was put to trial in the circuit court upon the original affidavit or complaint in the Jefferson county court of misdemeanors, and no complaint was filed by the solicitor in the circuit court as the law requires. There was no waiver of the complaint by the accused; therefore, under the authority of the...
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Young v. City of Hokes Bluff
...holding that the waiver of a prosecuting attorney's complaint "must affirmatively appear by the record," see, e.g., Owens v. State, 19 Ala.App. 573, 574, 99 So. 155 (1924), most of the decisions find an implied waiver from the failure to demand a prosecuting attorney's complaint. See, e.g.,......
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Newby v. State
... ... There ... does not appear in this record a brief statement of the cause ... of complaint signed by the solicitor or a waiver thereof by ... the defendant such as is required by section 3843 of the Code ... 1923. For this reason the judgment in this case must be ... reversed. Owens v. State, 99 So. 155, 19 Ala.App ... Section ... 4062 of the Code of 1923 makes it unlawful and fixes a ... penalty for any person to take, catch, or kill any fish in ... any of the waters of this state by means of any seine, ... trammel net, gill net, fish trap, or by any other ... ...
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Bonds v. State, 8 Div. 609.
... ... is tried in the circuit court, on appeal from the county ... court, it is essential that there should be a brief statement ... of 'the complaint,' signed by the solicitor (Revised ... Code, § 4059)," and a proceeding without it, or waiver ... of it, is erroneous. See, also, Owens v. State, 19 ... Ala.App. 573, 99 So. 155, and numerous cases therein cited ... It ... might be well to note that the statute, section 3843, supra, ... and what has been said herein above, has no application to ... prosecutions for the violation of the prohibition laws of ... this ... ...
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Stewart v. State, 8 Div. 892.
...thereof, the circuit court was without jurisdiction to proceed, and the judgment must be reversed and the cause remanded. Owens v. State, 19 Ala. App. 573, 99 So. 155. and remanded. ...