Reeves v. State

• Citation: 96 Ala. 33,11 So. 296
• Parties: REEVES v. STATE.
• Decision Date: 09 June 1892
• Court: Supreme Court of Alabama

11 So. 296

96 Ala. 33

REEVES v. STATE.

Supreme Court of Alabama

June 9, 1892

Appeal from circuit court, Butler county; JOHN P. HUBBARD, Judge.

Robert Reeves was convicted of disturbing a woman at a public assembly by rude and indecent behavior, and appeals. Reversed.

The indictment charged that, "before the finding of this indictment, Robert Reaves, alias Reeves, by rude or indecent behavior, or by profane or obscene language willfully disturbed a woman at a public assembly, met for instruction or recreation, against the peace and dignity of the state of Alabama." At the same term of the court at which the indictment was preferred the case was, by the order of the court, transferred to the county court of Butler county. At the October term, 1890, of the said county court the defendant was tried and convicted. He appealed from said judgment of conviction to the circuit court of Butler county and was there tried by a jury, and found guilty. From this judgment of conviction of the circuit court the defendant brings this present appeal.

By the acts of the general assembly of 1874-75 the county court of Butler and other counties had conferred upon them the power to try indictments for all misdemeanors except violations of the revenue law. In the third section of said act the defendant was granted the right to have a trial by jury upon his demand, and said section provided for an appeal from conviction in the county court to the circuit court. The fourth section of the act had reference to the manner of drawing, summoning, and impaneling the jurors. By the act of the general assembly of 1875-76 the third and fourth sections of the act of 1874-75 were repealed as to Butler county. The point raised on this appeal is that by the repeal of the third and fourth sections of the act defendant was denied the constitutional right of trial by jury, and therefore the act of 1874-75, without the third and fourth sections, is unconstitutional. The testimony introduced for the state tended to show that at a picnic the defendant and one Boswell got into a dispute a short distance from a ginhouse where there were ladies dancing; that they were a little way from the ginhouse and the gate, which was about halfway between the ginhouse and the house of one Halso, and there got into somewhat of an altercation, and that there was a great deal of cursing engaged in; that while they were so engaged several ladies passed by. The testimony for the defendant tended to show that while he was standing under a tree, away from the ginhouse, the said Boswell came out of the ginhouse and, on account of certain acts on the part of Boswell, he and the said Boswell, who was drunk, got into a dispute; that they were cursing, and Boswell cursed him in very loud tone of voice, but as to the defendant, while he cursed, it was so low that it could not be heard by any of the ladies. On the examination of one of the defendant's witnesses, and after the witness had testified that he saw no ladies pass while the defendant was at the gate, the defendant then asked the witness the following question: "Could you have seen any ladies pass by the gate while you were out there, and Reeves and Boswell were there?" The court sustained an objection to the question, and to this ruling defendant duly excepted. The court, in its oral charge, instructed the jury as follows: "If the defendant willfully engaged in a fight with Boswell, knowing that there were ladies present or where they could see or hear it, then this would be a willful disturbance or interruption within the contemplation of the statute as to willingness, if they were disturbed by it." The defendant excepted to the giving of this portion of the oral charge, as well as other portions thereof, and also duly excepted to the court's giving the following charge, asked by the prosecution in writing: "If the jury believe from the evidence beyond a reasonable doubt that the defendant willfully engaged in a difficulty at the gate with Boswell, and that the ladies were disturbed by it, then that would be a willful disturbance."

Gamble & Powell, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

WALKER J.

By the repeal, as to Butler county, of the third and fourth sections of the act of March 19, 1875, "in relation to trials for misdemeanors in Tuscaloosa and other counties therein named," that act, so far as it applies to Butler county was left without any provision for a trial by jury in the county court on indictments for misdemeanors transferred to that court from the circuit court under the second section of the act. Acts 1874-75, p. 235; Acts 1875-76, p. 361. It is provided by the second section of the act that, upon the transfer and delivery of such indictments to the county court, "the jurisdiction of said circuit court shall cease, except in cases of appeals hereinafter provided for, and exclusive jurisdiction thereof shall vest in said county court." There was no further reference to appeals in the act as it originally stood, except in a proviso in the third section "that nothing herein contained shall in any manner interfere with the right of the accused to appeal after conviction to the circuit court for said county." Though this third section has been repealed, yet, in view of the saving clause of the second section, it may fairly be concluded that it was the intention of the legislature, in repealing the third and fourth sections only, to preserve the right of appeal to the circuit court, as explicitly referred to in the second section. But the language of the second section clearly gives to the transfer of the indictment to the county court the effect of terminating the jurisdiction of the circuit court over the case, unless it is brought back there by appeal. Under this provision the circuit court cannot again get the indictment before itself for trial in any other way. As the act, in the condition in which it was left after the repeal of the third and fourth sections, merely confers upon the county court concurrent jurisdiction with the circuit court for the trial of all misdemeanors, except violations of the revenue law of this state, and provides for the transfer from the circuit court, upon the day of its adjournment, of all indictments then pending and untried in said circuit court against persons charged with the commission of such misdemeanors, without making provisions regulating the mode of procedure and trial in cases so transferred, we take it that the intention of the legislature was that the trial of such cases, when transferred to the county court, should be governed by the provisions of the general law regulating the proceedings in that court, except so far as such general law was rendered inapplicable by some provision of the special act in question. Under the general law governing the trial of misdemeanors in the county court, unless the defendant demands a trial by jury, the judge determines both the law and the facts, without the intervention of a jury, and awards the punishment which the character of the offense demands; and if the defendant demands a trial by jury, no such trial is had in the county court, but the case is sent for such trial to the next term of the circuit or city court having jurisdiction of the offense. Code, §§ 4219, 4220. Now, the provision of the general law which is applicable when the defendant demands a trial by jury cannot be reconciled with the requirements of the special act under consideration, for that act expressly provides that, after the transfer of the indictment to the county court, the jurisdiction of the circuit court shall cease, except in cases of appeals; while under the provision of the general law, (section 4219 of the Code,) when the defendant demands a trial by jury, there is no trial at all in the county court, but the case goes to the circuit or city court for trial, without an appeal. Any mode, except by appeal, of getting an indictment back into the circuit court for trial, after it had been transferred therefrom to the county court, pursuant to the provisions of the act under consideration, is in conflict with the express terms of that act. It follows, therefore, that the provision for sending a case in the county court to the circuit or city court for trial when the defendant demands a trial by jury does not apply to indictments transferred from the circuit court to the county court of Butler. The result is that, under the provisions of the act in question, the defendant cannot demand a trial by jury in the county court, but the case must be there tried by the judge alone, who determines the law and the facts, without the intervention of a jury. But there is nothing in the special act to render inapplicable the provisions of the general law giving the defendant the right of appeal to the circuit or city court of the county, with a trial de novo there before a jury, in all cases of conviction in the county court. Code, §§ 4226-4231. The result of the special act, after the repeal of the third and fourth sections, is that it provides for the trial by the county judge without a jury of cases transferred from the circuit court, and that defendant in such cases can obtain a jury trial only by an appeal to ...