Shuttlesworth v. City of Birmingham, 6 Div. 929
| Decision Date | 19 November 1963 |
| Docket Number | 6 Div. 929 |
| Parties | F. L. SHUTTLESWORTH v. CITY OF BIRMINGHAM. |
| Court | Alabama Court of Appeals |
Orzell Billingsley, Jr., and Peter A. Hall, Birmingham, for appellant.
Wm. C. Walker, Birmingham, for appellee.
Appellant, Fred L. Shuttlesworth, appeals from a conviction by the Circuit Court of Jefferson County, Alabama, of violating Sections 1142 and 1231 of the General City Code of Birmingham, Alabama. The case was heard by the Circuit Judge sitting without a jury. The first count of the complaint charges the appellant with loitering on a street corner with others so as to obstruct free passage along the sidewalk. The other count charges appellant with failure to obey the lawful command of a police officer.
Section 1142 of the General City Code of Birmingham, Street and Sidewalks to Be Kept Open For Free Passage, reads:
'Any person who shall obstruct any street or sidewalk or part thereof in any manner not permitted by this code or other ordinance of the city with any animal or vehicle, or with boxes or barrels, glass, trash, rubbish or display of wares, merchandise or sidewalk signs, or other like things, so as to obstruct the free passage of persons on such streets or sidewalks or any part thereof, or who shall assemble a crowd or hold a public meeting in any street without a permit, shall, on conviction, be punished as provided in Section 4.
Section 1231 of the General City Code of Birmingham, Obedience to Police, reads as follows:
'It shall be unlawful for any person to refuse or fail to comply with any lawful order, signal or direction of a police officer.'
The evidence, as introduced by the City, tended to show that the defendant was a member of a crowd of about ten or twelve people standing on the corner of 19th Street and 2nd Avenue, North, in the City of Birmingham, and that this crowd was blocking the sidewalk to such an extent that some of the other pedestrians were forced to walk into the street to get around them. The crowd was accosted by one Officer Byars and asked to clear the sidewalk so as not to obstruct pedestrian traffic. The evidence further showed that the crowd remained and when requested to disperse for the third time by Officer Byars, defendant Shuttlesworth said, 'You mean to tell me we can't stand here in front of this store?' at which time Officer Byars informed the defendant that he was under arrest. Officer Byars testified that at the time of the arrest everyone had moved or was moving away except Shuttlesworth. After being told that he was under arrest, Shuttlesworth moved away saying, 'Well I will go into the store.' Officer Byars then followed Shuttlesworth into Newberry's Department Store and took him into custody.
The appellant's first two assignments of error addressed to the action of the lower court in overruling appellant's motion to Quash and Demurrers to the complaint were overruled on the authority of Phifer v. City of Birmingham, Ala.App., 160 So.2d 898, which case was combined and tried with this one.
The third assignment of error presented by appellant is that the Court erred in denying and overruling the defendant's motion to exclude the testimony and for judgment. When there is sufficient evidence on the part of the prosecution to make out a prima facie case, a motion to exclude the evidence should be overruled. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280.
Appellant's fourth assignment of error was that the court erred in denying and overruling defendant's motion for a new trial. All the grounds set out and argued in appellant's motion for new trial, except ground 11, were grounds of a general nature and were properly overruled as sufficient evidence was introduced for the court to find the defendant guilty under the complaint.
The 11th ground of appellant's motion for a new trial is the same as his fifth assignment of error and reads:
'The court erred in sustaining the objections by the City of Birmingham as to reasons for the arrest and conviction of the appellant, especially regarding his civil rights activities.'
The following objections and rulings of the court thereon are alleged to be...
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