Thompson v. City of Sylacauga, 7 Div. 548.

• Citation: 30 Ala.App. 72,200 So. 795
• Decision Date: 04 March 1941
• Docket Number: 7 Div. 548.
• Parties: THOMPSON v. CITY OF SYLACAUGA.
• Court: Alabama Court of Appeals

200 So. 795

30 Ala.App. 72

THOMPSON v. CITY OF SYLACAUGA.

7 Div. 548.

Court of Appeals of Alabama

March 4, 1941

Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.

John Henry Thompson was convicted of violating an ordinance of the City of Sylacauga, and he appeals.

Reversed and rendered.

J. Forman Smith, of Sylacauga, for appellant.

Alfred T. Gaut, of Sylacauga, for appellee.

BRICKEN Presiding Judge.

The record filed upon this appeal is redundant with error and confusion. It shows that an affidavit was made by one W. F Temple, who was a police officer of the City of Sylacauga Talladega County, Alabama, before C. W. Lee, Recorder of said city. This affidavit recites that the affiant had probable cause for believing and did believe, that within twelve months before making of said affidavit, the offense of violating Section 851 of the Code of the City of Sylacauga Alabama, adopted January 7, 1924, providing that any person who steals any personal property must on conviction be punished as provided in this Article, has been committed in said city by John Henry Thompson. This affidavit shows that it was sworn to and subscribed on the 16th day of June, 1937.

Said record also shows that on said 16th day of June, 1937, the said C. W. Lee, Recorder, issued a warrant of arrest as follows: "Complaint on oath having been made before me that the offense of stealing a suit of clothes from Sam Jennings has been committed in the city of Sylacauga, in violation of the ordinance of said city within 12 months before the issuance of this warrant, and accusing John Henry Thompson, therefore, you are hereby commanded forthwith to arrest John Henry Thompson and bring him before the Recorder."

The endorsement on this warrant shows it was executed on the 16th day of June, 1937, by placing said named defendant under arrest.

It is to be noted that the affidavit charged a violation of a section of the city Code of the City of Sylacauga, while the warrant charges that the act complained of was committed in violation of an ordinance of said city.

Next appearing in this record is what purports to be a judgment of conviction pronounced against the said John Henry Thompson, defendant, by C. W. Lee, City Recorder, of said City of Sylacauga.

The judgment appearing in this record purports to be a copy of the Mayor's Docket, K, page 229, Case 685, styled City of Sylacauga v. John Henry Thompson, charged with petit larceny, and is dated "6/16/37," which judgment is as follows;

"Defendant appears in open Court and in his own proper person and pleads not guilty and after hearing the allegations and proof, the Court finds the defendant guilty as charged and fines him Ten Dollars and costs.

"Comes the defendant with his Sureties in open Court and confesses judgment for the fine and costs in this cause, for which let execution issue, the defendant failing to pay or secure said fine and costs, he is hereby sentenced to hard labor on the streets of Sylacauga for 20 days.

"Case appealed by Attorney to Circuit Court."

It is to be observed that the affidavit, the warrant, and the above judgment are all dated June 16, 1937.

It is to be emphasized that said judgment expressly recites that the defendant and his sureties in open court confessed judgment for the fine and costs. Section 1936 of the Code of Alabama, 1923, as amended by Gen.Acts 1927, p. 217, provides that the Recorder trying any person for violating any by-law or ordinance of the city, if the defendant is convicted: "May accept a confession of judgment of the defendant and sureties for the fine and costs which may contain a waiver of exemptions as to [personalty], and if such judgment is not paid in thirty days the recorder shall issue an execution thereon against the defendant and sureties," etc.

The above judgment shows a proper confession by defendant and his sureties for the fine and costs. Under the above statute, the Recorder had no power or authority to immediately, after taking such confession of judgment, sentence the defendant to 20 days' hard labor upon the streets of Sylacauga for payment of fine and costs.

This record also shows that on the 17th day of June, 1937, Sam Jennings made an affidavit before C. W. Lee, Recorder, alleging under oath that he had probable cause for believing and did believe that within twelve months before making said affidavit, the offense of petit larceny, stealing a suit of clothes from Sam Jennings, had been committed in the City of Sylacauga by John Henry Thompson. This affidavit is clearly and plainly an attempt to charge John Henry Thompson with the violation of a misdemeanor statute of the State of Alabama, viz: Code of Alabama 1923, Section 4908, which defines and prescribes punishment for the offense of petit larceny, and of which the Recorder had jurisdiction. Code 1923, Section 1945.

Very clearly, under said affidavit, it was the duty of the Recorder to issue a State warrant of arrest against the defendant for petit larceny, as the same is defined and punished by Section 4908 of the Code above referred to, if he deemed said affidavit sufficient to justify the issuance of any warrant of arrest at all.

The Recorder, however, did not issue a State warrant for the arrest of John Henry Thompson but on the contrary on the 17th day of June, 1937, he issued a warrant which recited that: "Complaint on oath having been made before me that the offense of petit larceny, stealing a suit of clothes from Sam Jennings has been committed in the City of Sylacauga, in violation of the ordinance of said City, within twelve months before the issuance of this warrant, and accusing John Henry Thompson, therefore you are hereby commanded forthwith to arrest him and bring him before the Recorder."

Upon this warrant appears the following endorsement: "Arrest made at 1:30 P. M. warrant issued at 5:30 P. M."

It is to be noted that the affidavit made by Sam Jennings did not allege that the offense of stealing a suit of clothes from Sam Jennings had been committed in the City of Sylacauga in violation of the ordinance of said city, and yet the warrant of arrest recites that the complaint did allege that the offense of stealing a suit of clothes from Sam Jennings had been committed in the City of Sylacauga in violation of the ordinance of said city.

It appears from the record that the last mentioned affidavit and warrant of arrest followed first the defendant's objection to an immediate trial filed in the Mayor's Court on the 17th of June, 1937; second, a written demand for a written copy of the complaint filed in said case on the 17th day of June, 1937; third, defendant's motion to quash his arrest upon the grounds that no affidavit had been filed with the court at the time the defendant was placed under arrest, and that the defendant was not arrested in the commission of the offense for which he was arrested, and that no warrant of arrest had at that time been issued charging the defendant with the violation of any ordinance of the City of Sylacauga, which was also filed on the 17th day of June, 1937.

Defendant's pleadings all show that his motions and objections were filed on the 17th day of June, 1937, while the judgment of conviction set out in this record shows that it was pronounced on the 16th day of June, 1937.

There is no judgment in this record upon the trial of this defendant on the 17th day of June 1937. Yet it appears from the appeal bond which was approved on the 17th day of June, 1937, by C. W. Lee, Judge of the City Court, or Recorder's Court of the City of Sylacauga as appears from the date of said appeal bond, and from the following recitals therein: "The condition of the above obligation is such that, whereas, on the 17th day of June, 1937 in the Recorder's Court of the City of Sylacauga, Alabama Talladega County, the Defendant, John Henry Thompson was convicted of the offense of stealing a suit of clothes from Sam Jennings and was fined Ten Dollars and costs from which judgment of conviction the said Defendant has applied for and obtained an Appeal to the Circuit Court...