Shuttlesworth v. City of Birmingham

178 So. 2d 178, 42 Ala. App. 675, 1965 Ala. App. LEXIS 337

• Court: Alabama Court of Appeals
• Decided: August 17, 1965
• Docket: 6 Div. 857
• Status: Published

Opinion

JOHNSON, Judge.

Appellant was convicted in the Recorder’s Court of Birmingham of interfering with a police officer in the performance of his duties, in violation of Section 856 of the General City Code of Birmingham of 1944. After this conviction the recorder entered a judgment ordering appellant to give a bond in a fixed amount with good sureties, conditioned that he keep the peace or in default thereof perform hard labor for the City for a period of thirty days. In ordering appellant to give such bond the Recorder acted under authority of Section 1088 of the General City Code of Birmingham of 1944, which reads:

"Sec. 1088. Peace Bonds.

“When any person is convicted of the violation of any ordinance, or when there is reason to apprehend that any person intends or is about to commit a breach of the peace, or of any ordinance, the recorder may require such person to give bond with good security, in such amount as he shall deem reasonable, conditioned that such person shall keep the peace and be of good behavior for a period of not exceeding twelve months. And if such person fail or refuse to give such bond, he shall be committed to the city prison for thirty days, unless such bond be given before the expiration of that time. When the person is a minor, the parent, guardian or the employer of the minor may give or cause the bond to be given. From any order or judgment of the recorder requiring such bond, an appeal lies as in other cases.”

Appellant appealed both judgments of the recorder to the Circuit Court of Jefferson County. The cases were tried separately, and appellant was convicted again in the first case of violating Section 856, supra, and in the second case judgment was entered ordering him, under the provisions of Section 1088, supra, to give a peace bond in a fixed sum. Both judgments of the circuit court were appealed to this court. This is the appeal from the judgment ordering appellant to give a peace bond.

We will take notice of our records of a prior companion case when, as here, reference is made to the prior case in the record under consideration, and the two cases represent related litigation.

Appellant’s conviction under Section 856, supra, was affirmed by this court in Shuttlesworth v. City of Birmingham, 42 Ala.App. 1, 149 So.2d 921, certiorari denied 274 Ala. 613, 149 So.2d 923. However, that case was reversed by the Supreme Court of the United States (376 U.S. 339, 84 S.Ct. 795, 11 L.Ed.2d 766).

Under Section 1088, supra, the recorder may require a person to give a peace bond (1) when such person is convicted of violating a city ordinance, or (2) when there is “reason to apprehend” that such person intends to or is about to commit a breach of the peace, or of any ordinance.

Upon careful examination of this record we have found no evidence whatever to support a finding that there is “reason to apprehend” that appellant intends to or is about to commit a breach of the peace, or of any ordinance. None of the witnesses testified that they saw appellant commit any act which is a breach of the peace or violation of any ordinance, nor did they see or hear anything from which it might be said that he intended to do so. Therefore, the judgment ordering him to give a peace bond must be regarded as based upon evidence of his conviction of violating Section 856, supra. As that judgment has been reversed, there is, in our opinion, nothing to support the judgment ordering him to give a peace bond. Therefore, this cause is due to be, and the same is hereby

Reversed and rendered.