Sherrod v. State

• Decision Date: 04 March 1916
• Docket Number: 6 Div. 973
• Citation: 71 So. 76,14 Ala.App. 57
• Parties: SHERROD v. STATE.
• Court: Alabama Court of Appeals

71 So. 76

14 Ala.App. 57

SHERROD v. STATE.

6 Div. 973

Court of Appeals of Alabama

March 4, 1916

Appeal from City Court of Bessemer; William Jackson, Special Judge.

Ed Sherrod, alias Ed Sherrel, was convicted of disorderly conduct, and he appeals. Affirmed.

McEniry & McEniry, of Bessemer, for appellant.

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

BROWN J.

This prosecution was commenced in the city court of Bessemer by complaint made before a justice of the peace on the 27th day of February, 1915, the justice issuing a warrant of arrest returnable to the city court. The defendant, as appears from the return of the officer indorsed on the warrant, was arrested on the 2d day of March, and gave bail for his appearance before the city court to answer the charge. By his pleas autrefois acquit, the defendant undertook to set up the judgment of the recorder's court of the city of Bessemer a court of concurrent jurisdiction of misdemeanors committed within the police jurisdiction of the city. Code 1907, § 1221. The defendant's first plea avers "On the 5th day of March, 1915, in the recorder's court of the city of Bessemer he was charged and put upon trial under complaint charging disorderly conduct, in that the defendant made use of insulting, abusive, or obscene language in the presence of a woman"--and was acquitted. The second avers that, "before the affidavit and warrant in this case were served on the defendant, defendant had been arrested, placed in the city jail in the city of Bessemer on a charge of disorderly conduct, had been released on bond to answer the recorder's court of said city of Bessemer on said charge; that thereafter, on the 5th day of March, 1915, he was charged and put upon trial," etc., and acquitted; and in each of said pleas it is averred that the transaction involved in the two prosecutions is the same.

The principle is universally acknowledged that where two courts have concurrent jurisdiction, that which first takes cognizance of the case has the right to retain it, to the exclusion of the other; and no other court can interfere and wrest from it the jurisdiction first obtained.

"These rules have their foundation, not merely in comity, but in necessity." Gay, Hardie & Co. v. Brierfield Coal Co., 94 Ala. 308, 11 So. 355, 16 L.R.A. 564, 33 Am.St.Rep. 122; Granite Co. v. Wadsworth, 115 Ala. 570, 22 So. 157; Gustin v. State, 10 Ala.App. 171, 65 So. 302 (affirmed on review by the Supreme Court, 66 So. 1008).

Jurisdiction of the offense and of the person must concur to authorize a court of competent jurisdiction to proceed to final judgment in a criminal prosecution. 12 Cyc. 220 (VI, G); Armstrong v. State, 23 Ind. 95; Ford v. State, 18 Ind. 484; Carrington v. Commonwealth, 78 Ky. 83; King v. People, 5 Hun (N.Y.) 297.

To this end, a formal accusation sufficient to apprise the defendant of the nature and cause of the accusation is a prerequisite to jurisdiction of the offense. Const.1901, § 6; Butler v. State, 130 Ala. 127, 30 So. 338; Miles v. State, 94 Ala. 106, 11 So. 403; 12 Cyc. 221 (VI, H).

Irregularities in obtaining jurisdiction of the person may be waived, but a formal accusation by indictment, or information, or complaint supported by oath is essential to complete jurisdiction, and cannot be waived. 12 Cyc. 221; Butler v. State, supra; Johnson v. State, 82 Ala. 29, 2 So. 466.

This prosecution was commenced on the 27th of February, 1915, when the complaint was made and the warrant of arrest issued, and the jurisdiction of the offense attached, empowering the court, through its process, to take the defendant into its custody and draw to itself jurisdiction over his person. The defendant was arrested and admitted to bail on March 2, 1915, and return of the warrant made into the city court; and its jurisdiction over the offense and the person was then complete. Code 1907, § 7350; Clayton v. State, 122 Ala. 91, 26 So. 118; 12 Cyc. 220 (V, G).

Complete jurisdiction of the city court thus appearing, the burden was on the defendant, who seeks to oust the city court of its jurisdiction, to show that the recorder's court acquired jurisdiction of the offense, as well as the person, authorizing it to proceed to final judgment, before the completed jurisdiction of the city court attached.

Both of the defendant's pleas confessedly show that no formal complaint or charge was made in the recorder's court, and that the defendant was not brought before the court and called on to plead until the 5th of March, 1915, three days after the defendant had been arrested and admitted to bond on the process of the city court. Under these conditions, when he was called to the bar of the recorder's court, his remedy was to set up by appropriate pleas the pendency of the prosecution in the city court, showing that this court had acquired complete jurisdiction of the offense and person before the formal accusation was made in the recorder's court. Gustin v. State, supra.

The fact that the police officers of the city of Bessemer were authorized by statute or ordinance to arrest offenders without warrant and commit them to jail, if this authority be conceded, did not, in the absence of a formal accusation, quicken into exercise the jurisdiction of the recorder's court over the offense until the offender was brought to the bar of the court and called on to plead, and this is true whether the offense be one denounced by statute or ordinance.

If the offense be one denounced by ordinance of the municipality, the formal accusation cannot be said to have been waived until the accused pleads to the charge without demanding the nature and cause of the accusation against him. Aderhold v. Mayor, etc., of Anniston, 99 Ala. 521, 12 So. 472.

We observe, however, that the charter provision relied on as conferring authority...