Mayor of Birmingham v. O'Hearn

42 So. 836, 149 Ala. 307, 1906 Ala. LEXIS 16

• Court: Supreme Court of Alabama
• Decided: December 20, 1906
• Status: Published

Opinion

TYSON, C. J. —

The appellee was arrested by a police officer of the city of Birmingham without a warrant for violating an ordinance of said city making vagrancy an offense. No complaint of any kind was'filed in the police court charging him with this offense. He was forced to submit to a trial against his objections, simply upon a statement entered upon the docket of the police judge, showing his alleged offense to be that of violating section 622 of the City Code, coupled with the oral statement of the police judge that section 622.of the City Code defined the offense of vagrancy and provided for its punishment. The judge, in response to defendant’s demand for a copy of the accusation against him and to know the. nature of the accusation, offered to furnish to his counsel a copy of the docket entry, which was refused, because insufficient and not in compliance with law. Upon the court’s refusal to furnish a complaint, or any further copy of the accusation than the copy of the docket entry, the defendant’s discharge was demanded and denied. After the conviction, on appeal, the question of the right and jurisdiction of the police court to proceed in the manner indicated above was raised and adjudged by the appellate court to have been erroneous, resulting in the discharge of the defendant.

It will scarcely be doubted that, if a written complaint was necessary in the police court to a proper hearing and determination of the case, the statement of the cause of the complaint filed by the attorney for the municipality in the appellate court was totally ineffectual to supply the defect. — Miles v. State, 94 Ala. 106, 11 South. 403; Butler v. State, 130 Ala. 127, 30 South. 338. Nor can it be doubted that the entry upon the docket of the police judge was entirely wanting in the essential requisites of a complaint, should it be conceded that the entry could, under any circumstances, perform the office of a complaint. So, then, the correctness of the rulings here sought to be reversed are dependent upon the solution of the question whether the defendant was entitled, upon demand, to be apprised of the nature and character of the proceeding instituted against him by a written complait. If the proceeding was for the prosecution of a criminal offense, the right “to demand the nature and cause of the accusation and to have a copy thereof” was secured to him by the Constitution. — Article 1, § 6, of the Constitution of 1901; City of Selma v. Stewart, 67 Ala. 338, 340; Telheard v. City of Bay St. Louis, (Miss.) 40 South. 326. If it was in its nature and character purely civil, his right to a written complaint was secured by the statute. If it was neither civil nor criminal, but partook of the nature of both, then the right was secured by the common law, in the absence of a statute depriving him of it. It is not insisted that any such statute exists. — Horr & Bemis on Municipal Ordinances, § 172; McQuillan on Municipal Ordinances, § 314; Prell v. McDonald, 7 Kan. 426, 12 Am. Rep. 423, and authorities there cited. See, also, Case v. Mayor of Mobile, 30 Ala. 538; Town of Camden v. Bloch, 65 Ala. 236. So, then, whatever point of view we may take of the proceedings in the police court, the defendant’s demand for a complaint could not be rightly denied him, and the holding of the criminal court on this point was correct. It may not be amiss to say that, had the defendant proceeded to trial in the. police court without making the demand for a complaint, he would be held to have waived it. — City of Selma v. Stewart, supra; Aderhold v. Mayor, etc., of Anniston, 99 Ala. 521, 12 South. 472.

It appears from the judgment that the municipality was taxed with the costs, and execution was awarded against it. In this there was error, for which the judgment will be reversed and corrected. — City of Selma v. Stewart, supra, and authorities there cited.

Reversed and corrected, and, as corrected, affirmed.

Haralson, Simpson, and Denson, JJ., concur.