Ryan v. City of Birmingham

• Decision Date: 20 May 1909
• Citation: 49 So. 749,160 Ala. 261
• Parties: RYAN v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

49 So. 749

160 Ala. 261

RYAN v. CITY OF BIRMINGHAM.

Supreme Court of Alabama

May 20, 1909

Appeal from Criminal Court, Jefferson County; A. C. Howze, Judge.

Dan Ryan was convicted of illegally selling intoxicating liquors and appeals. Reversed and remanded.

The affidavit, omitting the formal charging part, is as follows "W. L. Mitchell, being duly sworn, says: That spirituous, vinous, or malt liquors or intoxicating beverages have been sold or otherwise disposed of in violation or evasion of law, and against the peace and dignity of the state of Alabama, in a certain house, room, or inclosure in the city of Birmingham, Alabama, to wit, at No. 118 North Twenty-Third street, and that the person committing such offense conceals himself in such house, room, or inclosure aforesaid, or is using therein a device or subterfuge in selling or otherwise disposing of such liquors or beverages and that such person was unknown to the affiant, who is making this complaint, and that said offense is being committed contrary to the law of, and against the peace and dignity of, the state of Alabama." The fiat issued on said affidavit was in the following language: "Whereas complaint has been made before N. D. Fagin, judge of the police court of Birmingham, Alabama, under oath, under and according to the terms of section 5084 of the Criminal Code of the state of Alabama, which complaint and affidavit is set forth above; and whereas, W. L. Mitchell has complained on oath before the said N. D. Fagin, as judge of the police court of Birmingham, Alabama, that spirituous, vinous, or malt liquors or intoxicating beverages have been sold or otherwise disposed of in violation or evasion of law and against the peace and dignity of the state of Alabama in a certain house, room, or inclosure in the city of Birmingham Alabama, to wit, at No. 118 North Twenty-Third street, and that the person committing such offense conceals himself in such house, room, or inclosure, as aforesaid, or is using therein a device or substitute in selling or otherwise disposing of such liquors or beverages, and that such person is unknown to the affiant, who has made such complaint, and that said offense is being committed contrary to the law of, and against the peace and dignity of, the state of Alabama: Now, therefore, you are hereby commanded to proceed at once to the said house, room, or inclosure in which said violation of law is alleged to have occurred, and to arrest such unknown person charged in said complaint to have committed the offense herein named, and to arrest all persons at the said place, as required by section 5084 of the Criminal Code of Alabama, and bring them before the said judge of the police court of Birmingham," etc. The writ was executed by arresting D. O. Ryan, W. D. Bufford, and Thomas Davenport. Demurrers were filed to this information but it is not necessary to here set them out.

Upon the trial of the cause the defendants were found guilty fined $100, and sentenced to perform 90 days' hard labor for the city of Birmingham. The testimony tended to show that the building was a two-story frame building, with a hall running...