Scott v. State

227 So. 2d 436, 45 Ala. App. 149, 1969 Ala. App. LEXIS 350

• Court: Alabama Court of Appeals
• Decided: June 17, 1969
• Docket: 1 Div. 332
• Status: Published

Opinions

CATES, Judge.

This is an appeal from a conviction of assault with a pistol, a misdemeanor. Code 1940, T. 14, § 33. Scott was fined $50.00 to which the trial judge added 90 days hard labor with suspension of sentence during good behavior for twenty-four months. Holman v. State, 43 Ala.App. 509, 193 So.2d 770.

The facts are simple; they either tend to exonerate or to convict. Under familiar principles, we must take that version which upholds the verdict below.

Briefly, Scott went to the home of one Charles Harrington and presented a pistol. Thereupon, whilst holding the gun on his victim, he struck with a blackjack. Scott’s object was to collect money from Harrington.

Scott denied this assault (and battery) and also adduced a witness who stated that Harrington enjoyed a bad reputation for truth and veracity.

The only point argued by appellant is that the statute of limitations had already run by the time the District Attorney filed his complaint de novo in the Circuit Court.

The offense was committed January 6, 1967. The Circuit Court complaint was filed March 21, 1968.

But the appeal bond to remove the case to the Circuit Court recites a judgment rendered January 27, 1967, by the Recorder of Mobile. Code 1940, T. 37, § 594. Hence, we infer and therefore presume that an originating warrant or summons was issued out of the Recorder’s Court within three weeks after the alleged assault.

At common law, the lapse of time in prosecution was no bar: nullum tempus occurrit regi. Kenny’s Outlines of Criminal Law (17th ed.) 508. Hale, 2 P.C. 72, calls the arrest the first instance of prosecution.

Code 1940, T. 15, § 225 gives three points of beginning viz. indictment, issuance of warrant, or binding over. See Richardson v. State, 215 Ala. 318, 111 So. 204.

Code 1940, T. 15, § 222 reads as follows:

“The prosecution of all misdemeanors before the circuit, or county court, unless otherwise provided, must be commenced within twelve months next after the commission of the offense”.

We hold that the original arrest (i. e., between January 6 and 27, 1967) tolled the running of the statute because the prosecution began then. The Recorder’s acting under § 594, supra, made his court ad hoc a '“county . court” within the meaning of § 222, supra. See discussion in Herrmann v. Robinson, 43 Ala.App. 442, 192 So.2d 251.

For the purpose of beginning prosecution under § 222, supra, the appeal to the Circuit Court was but the continuation of the prosecution before the Recorder. See Ross v. State, 55 Ala. 177(2); and § 225, supra.

The de novo complaint required of the District Attorney is only an essential part of a skein of the prosecution. Indeed trial may be had in the Circuit Court on the lower court complaint. Taylor v. Decatur, 40 Ala.App. 571, 117 So.2d 786. Here action began with issuance of the warrant, which one statement in court said was issued January 13, 1967.

Delay between the Recorder’s court and the Circuit Court trial is not shown to have been complained of by any demand in the nature of one for speedy trial.

We find no error and the judgment below is due to be

Affirmed.