Taylor v. State

• Decision Date: 03 November 1925
• Docket Number: 6 Div. 771
• Citation: 105 So. 915,21 Ala.App. 157
• Parties: TAYLOR v. STATE.
• Court: Alabama Court of Appeals

105 So. 915

21 Ala.App. 157

TAYLOR v. STATE.

6 Div. 771

Court of Appeals of Alabama

November 3, 1925

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Moody Taylor was convicted of living in a state of adultery, and he appeals. Reversed and remanded.

J. Carl Shepherd, of Berry, and Curtis, Pennington & Pou, of Jasper for appellant.

Harwell G. Davis, Atty. Gen., Lamar Field Asst. Atty. Gen., and A.F. Fite, of Jasper, for the state.

BRICKEN P.J.

From a judgment of conviction in the circuit court (on appeal from the county court) for the offense of adultery this appeal is taken. This prosecution originated by the swearing out of a warrant before a justice of the peace, which was made returnable to the county court. In the county court the defendant entered a plea of "not guilty." His trial there resulted in his conviction, from which judgment he appealed to the circuit court of Walker county.

In the circuit court the cause was tried upon a complaint filed by the solicitor, to which defendant entered a plea of "not guilty." The trial resulted in his conviction; the jury assessing a fine of $125, to which the court added six months' hard labor for the county.

It is first insisted that at the time of the trial of this defendant in the county court of Walker county that court had ceased to exist by operation of law; that as a result the trial was coram non judice, and the judgment rendered void and, being void, would not support an appeal. This insistence is based upon section 3800, Code 1923 (Acts 1915, p. 862). Section 3800 is as follows:

"The county courts, as they existed under the Code of 1907, are re-established in all counties of the state except in those counties which have a population of fifty thousand or more, according to the last preceding federal census and also except in those counties where such courts have been abolished since September 25, 1915. As to these counties, the county courts remain abolished."

This court takes judicial knowledge of the federal census. It is insisted that the last federal census (1920) gave to Walker county a population of 50,523, and that under the provisions of above quoted section as soon as this census was taken and promulgated the county court of Walker county ceased a legal existence. Further, that the 1923 Code went into effect on August 17, 1924, and that this appellant was tried and convicted in said court subsequent to that date.

The county court of Walker county was established by the act of the Legislature approved September 25, 1915 (Acts 1915, p 862). The controlling question, therefore, for our consideration is whether the 1915 act, supra, establishing the court, was repealed by section 3800 of the Code 1923. While this question is not without difficulty, we are not prepared to construe section 3800, Code 1923, as repealing Acts 1915, p. 862. Our conclusion is that the act of 1915, establishing the county court of Walker county, was not repealed by section 3800 of the Code of 1923; that section 3800 merely had the effect of bringing into the Code the provisions of the act of 1915, supra, which act re-established the county court in all counties having a population with less than 50,000, and also provided that in counties where such courts had been abolished since the approval of the act of 1915 such courts should remain abolished and were not re-established by the Code. We regard it as unnecessary to elaborate further upon this proposition, but we do cite the case of Allgood, Auditor, v. Sloss-Sheffield Steel & Iron Co., 196 Ala. 500, 71 So. 724, as being direct authority supporting our construction of the statutory questions here involved.

There are several assignments of error based upon exceptions reserved to the rulings of the court pending the trial. The first five assignments relate to refused charges.

Charges 1 and 2 were the affirmative charges requested in behalf of defendant. The evidence in this case was in conflict, and presented a jury question; therefore the court was without authority to direct the verdict. Bean v. State, 19 Ala.App. 59, 94 So. 781.

Refused charge 3 pretermits a consideration of the evidence. It was therefore properly refused. Moreover, the oral charge of the court fairly and substantially covered the proposition of law contained in this charge. The rule of evidence announced therein, when properly stated, is elementary.

Refused charge 4 is subject to the same criticism as charge 3 above discussed. It was also fully covered by the oral charge. In the oral charge the court said:

"The measure of proof is such that you must be satisfied beyond a reasonable doubt from the evidence after you have

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