Welch v. City of Birmingham, 6 Div. 349
Decision Date | 07 October 1980 |
Docket Number | 6 Div. 349 |
Citation | 389 So.2d 521 |
Parties | Arthur James WELCH v. CITY OF BIRMINGHAM. |
Court | Alabama Court of Criminal Appeals |
William Conway and Fred Blanton, Birmingham, for appellant.
Rowena M. Crocker, Asst. City Atty., Birmingham, for appellee.
Appellant was convicted in each of five separate cases (CC 80-00661 through CC 80-00665) in which he was charged with selling an alcoholic beverage without a license. He had been previously convicted in each case in the Municipal Court of the City of Birmingham and had appealed to the Circuit Court of Jefferson County and demanded a jury trial. Before the trial started, the trial court consolidated for trial all of the five cases, over the objection of defendant. During the process of interrogating the panel of jurors from which the jury to try the case was selected, the following occurred:
It is understood that the jury remained on the panel from which the jury that tried the case was selected by the process of striking.
A major ground of insistence on appeal is that the trial court erred in overruling defendant's challenge for cause of the juror employed by the City of Birmingham as stated. He relies largely upon Lightfoot v. City of Birmingham, 36 Ala.App. 77, 52 So.2d 398 (1951) and Shapiro v. City of Birmingham, 30 Ala.App. 563, 10 So.2d 38 (1942), in which it was held that it was reversible error for the trial court to overrule a challenge for cause of a prospective juror who at the time was an employee of the city of Birmingham. In taking issue with appellant on the point, appellee relies upon McAdory v. State, 37 Ala.App. 349, 68 So.2d 68 (1953) and Brown v. State, 37 Ala.App. 516, 74 So.2d 273, aff'd 261 Ala. 696, 74 So.2d 277 in which it was held that in a prosecution by the State of Alabama, the trial court was not in error in overruling defendant's challenge for cause of a prospective juror who was employed at the time by the state of Alabama. In attempting to distinguish between cases in which it was held that the juror in question was subject to the challenge for cause and those in which it was held that he was not, appellee states in its brief:
We prefer the language of, and the reason for, the distinction made by Judge Carr in McAdory v. State, supra, at 68 So.2d 69:
There has been no change in the principle stated and applied in Shapiro, supra, and Lightfoot, supra, to the effect that employment of a juror by a party to litigation is in and of itself generally calculated to affect adversely the desirable balance one should have as a juror and for that reason a juror employed by a municipality is subject to challenges for cause in a case in which the municipality is a party. It follows that the trial court was in error in overruling defendant's challenge for cause of the particular juror.
We do not agree with appellant's contention that the complaint in any of the five cases was subject to demurrer on the ground that it failed to state the name of the person to whom the defendant allegedly sold an alcoholic beverage. Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973) and Manson v. State, Ala.Cr.App., 349 So.2d 67 (1977) are to the contrary in prosecutions for the sale of a controlled substance and a sale involving a transaction in securities respectively.
In view of the necessity for a reversal for the reasons stated and the probability that the two other issues presented by appellant will not arise again, we make no determination of them at this time.
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