Red v. State

• Decision Date: 19 May 1910
• Citation: 167 Ala. 96,52 So. 885
• Parties: RED v. STATE.
• Court: Alabama Supreme Court

52 So. 885

167 Ala. 96

RED v. STATE.

Supreme Court of Alabama

May 19, 1910

On Rehearing, June 30, 1910.

Appeal from Criminal Court, Jefferson County; S. L. Weaver, Judge.

Jim Red was convicted of crime, and he appeals. Affirmed.

Allen &amp Bell, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

McCLELLAN J.

By express provision of the act creating the inferior court in precincts 21 and 37 of Jefferson county, authority was conferred on the judges of that court to take affidavits and issue warrants in misdemeanor cases "directly returnable to any court having final jurisdiction thereof." Loc Acts 1903, pp. 379, 381. In this instance a judge of that inferior court took an affidavit charging appellant with a misdemeanor, and issued a warrant thereon returnable before the "judge of the criminal court of Jefferson county." The accused was promptly arrested and made a bond for his appearance "at the present term of the criminal court of Jefferson county."

The improper direction for the return before the "judge" of the criminal court was an immaterial irregularity. Carnley v. State, 50 So. 362; Pell City Man. Co. v. Swearingen, 156 Ala. 397, 47 So. 272.

There is no constitutional inhibition against the taking of affidavits charging misdemeanors, and the issuance of warrants therefor returnable to criminal courts created by statute, by justices of the peace. Walker v. State, 89 Ala. 74, 8 So. 144; Reeves v. State, 116 Ala. 481, 23 So. 28; Lee v. State, 143 Ala. 93, 95, 39 So. 366. So that, if the argument that inferior courts, established in lieu of the tribunals called "justice courts," as provided may be done by section 168 of the Constitution of 1901, are, strictly speaking, substitutes only for the justice courts, be accepted as apt and correct, the conclusion does not follow that such a substitutionary court or its judges cannot be properly empowered to take affidavits and order the return, in misdemeanor cases, of warrants to the criminal courts of counties having those tribunals.

The act (Acts 1894-95, p. 498) considered, as presently pertinent, in Lee v. State, supra, was a restriction on the power of the justices of the peace therein described, and it was held on that appeal that the process was improperly made returnable, in that instance, to the criminal court instead of to the police court.

There is no merit in the insistence that the act creating the inferior court in precincts 21 and 37 (Loc. Acts 1903, p. 379 et seq.) is violative of subdivision 21 of section 104 of the Constitution of 1901, in that it increased the jurisdiction of the justices of the peace by local law. Aside from other probable reasons, this consideration is satisfactory: That the effect of the latter act was not to increase jurisdiction, even had it dealt with justices of the peace instead, as it did, of an inferior court (Const.§ 168), since to take affidavits and to issue warrants the justices already had jurisdiction, and the only result of the amplification was to broaden the effect of an exercise of that jurisdiction previously possessed.

The defendant's demand for a trial by jury was attempted to be made after the expiration of the period allowed by law for that purpose. It came too late.

The affidavit was not subject to demurrer. Its words "A prohibition district and" were surplusage merely.

There is no error apparent on the record; so the judgment is affirmed.

Affirmed.

DOWDELL, C.J., and SAYRE and SIMPSON, JJ., concur.

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