State v. Fort

• Decision Date: 16 December 1909
• Parties: STATE EX REL. CITY OF BIRMINGHAM v. FORT, JUDGE.
• Court: Alabama Supreme Court

51 So. 317

164 Ala. 578

STATE EX REL. CITY OF BIRMINGHAM v. FORT, JUDGE.

Supreme Court of Alabama

December 16, 1909

Mandamus by the State, on the relation of the City of Birmingham against Hon. William E. Fort, as Judge of the Criminal Court of Jefferson County. Writ denied.

J. Q Smith, for petitioner.

Vassar L. Allen and A. Leo Oberdorfer, for respondent.

SIMPSON J.

This is a petition by the city of Birmingham for a writ of mandamus to Hon. William E. Fort, as judge of the criminal court of Jefferson county, requiring him to transfer the case of City of Birmingham v. J. T. Wilson from the jury docket to the nonjury docket of said court, and to try the same without a jury. Said Wilson was tried by the recorder of the city of Birmingham for a violation of the city ordinance in regard to gambling houses, was convicted, and appealed to said criminal court of Jefferson county, demanding a trial by jury.

It is admitted that it is within the power of the Legislature to provide for the trial of such offenses without a jury; so the question to be decided is whether or not the statutes require said criminal court to try such cases, when brought up to it without a jury. Said recorder has been chosen and is acting under statutes in the Code relating to municipal corporations. The case of Costello v. Feagin, Judge etc., 50 So. 134, is based upon an act which provided that, when a case was appealed from the police court to the criminal court of said county, it should be tried de novo without a jury. Section 6, Act Feb. 11, 1895; Acts 1894-95, pp. 530, 531. The case of Miller v. Mayor, etc., of Birmingham, 151 Ala. 469, 44 So. 388, 125 Am. St. Rep. 31, rests on the same statute.

While the Legislature may provide that such cases shall be tried, both in the primary and the appellate court, without a jury, yet, when it simply provides for an appeal and a trial de novo, the inference must be that when it is tried de novo in the appellate court it is to be in accordance with the rules of practice in that court. Referring to the statutes, section 1217 of the Code of 1907 provides that "the case appealed shall be tried de novo in such court, and the judge or jury trying such cause is authorized to impose upon the person convicted such punishment, by fine or by imprisonment in the city jail, or other place of confinement, or hard labor for the city, or by fine and imprisonment, as the court or jury may deem proper and is authorized by law or ordinance for such offenses."

It is insisted by the petitioner that, because section 1215 besides giving the recorder jurisdiction to try for violations...