Wright v. City of Bessemer

• Decision Date: 03 May 1923
• Docket Number: 6 Div. 872.
• Citation: 209 Ala. 374,96 So. 316
• Parties: WRIGHT v. CITY OF BESSEMER.
• Court: Alabama Supreme Court

96 So. 316

209 Ala. 374

WRIGHT v. CITY OF BESSEMER.

6 Div. 872.

Supreme Court of Alabama

May 3, 1923

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Lizzie Wright was convicted in recorder's court of violating an ordinance of the city of Bessemer, appealed to circuit court and from judgment there dismissing her appeal, she further appeals. Transferred from Court of Appeals under Acts 1911 p. 449, § 6. Reversed and remanded.

Benton & Bentley, of Bessemer, for appellant.

Bumgardner & Wilson, of Bessemer, for appellee.

MILLER J.

Lizzie Wright, the appellant, pleaded guilty in the recorder's court of the city of Bessemer to a charge of violating a prohibition ordinance of the city. She was fined by the court $100 and costs, $2.50, or in lieu thereof sentenced to serve 205 days at hard labor upon the streets of the city. This was on May 2, 1922. This judgment also recites defendant appealed to the circuit court of Jefferson county, Bessemer division her bond being fixed at $300, which was made and approved May 2, 1922.

On May 10, 1922, defendant demanded a jury trial in writing, which was filed that day in the circuit court (Bessemer division). The city solicitor of the city of Bessemer on September 19, 1922, filed written motion to dismiss the appeal. The court granted the motion, to which ruling of the court defendant duly excepted, and the appeal was dismissed by order of the court on September 19, 1922, and from this judgment the defendant appealed, on September 19, 1922, to this court.

There is no bill of exceptions in the record, and there is no evidence before this court. This being true, this court will presume any state of evidence to sustain and uphold the rulings of the lower court. Lamar v. King, 168 Ala. 285, 53 So. 279. See, also, authorities cited in 1 Michie's Dig. p. 506, § 907 (4).

The motion to dismiss the appeal reads as follows:

"Now comes the city of Bessemer by its solicitor and moves this court to dismiss the defendant's appeal in this case, and as grounds for said motion says that when this case was originally tried in the recorder's court of the city of Bessemer that this defendant entered a plea of guilty to the offense charged, and from which she appealed, and the city alleges that said plea of guilty was entirely voluntary, and not induced by fear, misrepresentation, persuasion, or the holding out of false hopes, or made through inadvertence or ignorance."

The foregoing motion follows the rule stated in the opinion of Presiding Judge Walker in State v. Thomas, 9 Ala. App. 1, 63 So. 688, on this subject, which is as follows:

"A plea of guilty does not preclude a defendant from complaining of the judgment and sentence entered upon it, unless it is entirely voluntary, and not induced by fear, misrepresentation, persuasion, or the holding out of false hopes, or made through inadvertence or ignorance. Lowe v. State, 111 Md. 1, 73 A. 637, 24 L. R. A. (N. S.) 439, 13 Ann. Cas. 744; 12 Cyc. 253."

The court erred in overruling defendant's demurrer to the motion and in granting the motion and dismissing defendant's appeal. The appeal was authorized by section 1217, of the Code of 1907, which provides:

"And in any case the defendant may take an appeal to such court by giving bond with good and sufficient sureties, payable to the city, to be approved by the recorder or officer trying the case, conditioned to be void if the defendant appears from term to term of said court, until discharged by law, to answer said charge, but unless such bond be given within five days from the date of the judgment no appeal shall be allowed from such judgment."

This authorizes an appeal by a defendant in any case. See, also section 1451, ...