Sherrod v. State

• Citation: 197 Ala. 286,72 So. 540
• Decision Date: 30 June 1916
• Docket Number: 6 Div 320
• Parties: SHERROD v. STATE.
• Court: Supreme Court of Alabama

72 So. 540

197 Ala. 286

SHERROD v. STATE.

6 Div 320

Supreme Court of Alabama

June 30, 1916

Certiorari to Court of Appeals.

Ed Sherrod was convicted of an offense, and appealed to the Court of Appeals, which affirmed the judgment (71 So. 76) and he petitions the Supreme Court for writ of certiorari to review such affirmance. Writ awarded and judgment of the Court of Appeals reversed, and cause remanded.

McEniry & McEniry, of Bessemer, for appellant.

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

ANDERSON C.J.

It is conceded that the city court and the recorder's court of Bessemer had concurrent jurisdiction of the offense involved and that the offense for which appellant was convicted in the city court included or was similar to the one for which the defendant had previously been tried in the recorder's court. It is also conceded that the police officer had the right, under the existing law, to arrest the accused without affidavit or warrant, and take him before the recorder for the offense with which he was tried, as being a violation of a city ordinance. The accused had the right, before conviction, to demand the nature and character of the accusation against him, but this he could waive. McKinstry v. City of Tuscaloosa, 172 Ala. 344, 54 So. 629; Dowling v. City of Troy, 173 Ala. 468, 56 So. 118; Birmingham v. O'Hearn, 149 Ala. 307, 42 So. 836, 13 Ann.Cas. 1131; Aderhold v. Anniston, 99 Ala. 521, 12 So. 472.

The fact that the accused was arrested and tried without an affidavit did not render the judgment in the recorder's court void for want of jurisdiction. Brooke v. State, 155 Ala. 78, 46 So. 491.

The fact that a warrant was issued by the city court before the accused was arrested by the policeman for the violation of a city ordinance did not give the city court jurisdiction, to the exclusion of the recorder's court, as the recorder's court first acquired jurisdiction of the person. It is, of course, a general rule, where two courts have concurrent jurisdiction of a cause, the first one acquiring jurisdiction has the right to proceed to the exclusion of the other, but in personal or criminal actions the jurisdiction does not attach or become vested in the court issuing the process until jurisdiction of the person has been acquired, either by the service of process or a voluntary appearance. The law gave each of said courts jurisdiction of the subject-matter, but the jurisdiction of the person could be acquired only by service of its process, or a voluntary appearance of the defendant. Woolf v. McGaugh, 175 Ala. 303, 57 So. 754; Lamar v. Commissioners' Court, 21 Ala. 772.

The recorder's court having jurisdiction of the subject-matter and as the policeman had the right to arrest the accused without a warrant, the said recorder's court acquired jurisdiction of the person of the defendant, and had the right to proceed to judgment, notwithstanding that there was an outstanding unexecuted warrant against him from the city court when he was arrested by the policeman for violating a city ordinance. The pleas set up a complete bar to the prosecution in the city court. Brooke's Case, supra; Jackson v. State, 136 Ala. 96, 33 So. 888. If the pleas were not fully sufficient, the defect should have been suggested by demurrer, and not by a motion to strike.

The Court of Appeals concedes error in striking the pleas, but invokes the doctrine of error without injury, upon the theory that the undisputed facts show that the recorder's court did not have jurisdiction to render the judgment set up because the city court first acquired jurisdiction. This court does not review the conclusion of the Court of Appeals upon the facts, or in the application of the law to the facts, and ordinarily will not review its action in the application of the rule of error without...