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laws en bloc have been considered. In power of the city is unquestionable." This Chrisman v. City of Jackson, 84 Miss. 787, language affords every indication that the 37 South. 1015, an ordinance of the sort was case presented was the not unusual case of sustained. But legislative enactment had a valid statute or ordinance limited in some prescribed that “all offenses against the applications by paramount law. Such was criminal laws of this state, occurring within also the case in Harbaugh v. Monmouth, 74 the limits of said corporation, not amount. Ill. 367. The Kettering Case was cited by ing to a felony, shall be deemed violations this court with approval in Ex parte Cowert, of the ordinances of the city of Jackson and 92 Ala. 94, 9 South. 225. We have other punishable as such." There is no occasion cases to the same effect. Shelton V. Moto question the legislative power there ex- bile, 30 Ala. 540, 68 Am. Dec. 143; Ex parte ercised. In the later case of Town of Oak- Byrd, 84 Ala. 17, 4 South. 397, 5 Am. St. land v. Miller, 90 Miss. 275, 43 South. 467, Rep. 328. the Supreme Court of Mississippi consider We intend to cast no sort of discredit upon ed an ordinance in these words: "Be it or those cases. Their doctrine is perfectly dained by the mayor and board of aldermen sound. But they are without influence in of the town of Oakland, state of Mississip- the case at bar. The ordinance considered pi, that all acts punishable under the laws in those cases clearly told the citizen what of the state of Mississippi, when committed he must not do. But here the offense is de. within the municipality of the village of fined neither by inclusion nor exclusion. Oakland, are hereby declared to be offenses The offenses to be included, as well as those against said town and punishable," etc. The to be excluded, are alike undefined. If the ordinance was said to be manifestly void, for ordinance had said all acts injurious to the the reason that it included felonies as well health, morals, or peace of the community as misdemeanors; the statute having limit. are hereby prohibited, the courts are compeed the jurisdiction of municipalities to the tent to determine in each case as it might punishment of misdemeanors. The line of arise whether the act charged violates so discrimination which might have been ap- general an ordinance. But would such an plied to that case to save the ordinance ordinance meet the requirement of certainwas entirely plain—the line between felo- ty? Would its promulgation convey infornies and misdemeanors. But the court refus- mation of any definite legislative purpose? ed to draw it. The judgment was that the If so, there has been a vast expenditure of line must be drawn in the ordinance itself. useless effort in this country in the framing The case in hand involves an identical prin- of municipal codes. True, the ordinance prociple. The ordinance under consideration bibits only those acts now prohibited by is even more clearly bad, for the reason statute or common law; but this does not that the line to be drawn is itself doubtful narrow the field of inquiry, because it still and not well defined. That it goes beyond remains to be determined whether any parthe power of the municipality seems clear. ticular statute or common-law principle has

It is supposed that the case of Kettering relation to any purpose which may be enV. Jacksonville, 50 Ill. 39, decided by the forced by municipal ordinance. The judg. Supreme Court of Illinois in 1869, holds to ment of the legislative branch of the gov. the contrary of what has been said. The ernment is not expressed. The citizen must following language of the decision in that judge for himself, at the peril of becoming case furnishes all the information we have a violator of law if he makes a mistake, in of the question there presented and decid- a matter about which the courts are often ed: “It is said that the ordinance in ques not in accord. Such an ordinance is void. tion prohibits not only the sale of liquor by The considerations already adverted to retail, but by wholesale, and therefore can- suffice for the disposition of this appeal. not be sustained as a police regulation. But We are advised, however, that there were this prosecution was for the sale of beer a number of cases pending in the inferior by the glass, in what is called a 'saloon,' court of criminal jurisdiction in the city of and therefore does not involve the question Birmingham, and others in the criminal of the power of the city to forbid its sale court of Jefferson county, to which lastas an article of commerce, to be carried be named court they were removed from the yond the limits of the city, or used for me- police court under the statute, at the time chanical or domestic purposes. Such a case this appeal was taken, brought under other is not before us. The facts which are pre- sections of the Municipal Code of that city, sented by the record not only show a vio- which await the disposition of this case, lation of the terms of the ordinance, but a and which depend upon questions other than violation of such a character as to be clear-those we have already considered. One of ly within the constitutional reach of the those questions is involved in this appeal, city prohibition. The ordinance may be too has been argued by counsel, and may with comprehensive in its provisions, and covers propriety have consideration at this time. cases which the city has no power to con The act creating the inferior court of trol; but that is no reason why we should criminal jurisdiction in the city of Birming

TIONS.

issue warrants of arrest. It is argued that court of criminal jurisdiction in the city of the issue of warrants of arrest is a judicial Birmingham, or the police court of Birming. power, which can be conferred only upon ham, as the court in which this prosecua judicial officer. It implies the power and tion was commenced is known in the act of the duty to hear and determine the question its creation. It appears, however, that, of probable cause. The principle of this even if the argument for the abolition of the contention was long ago disposed of by the police court be tenable, the Municipal Code decisions of this court. In Ex parte Gist, law had not under its terms had that effect 26 Ala. 156, it was argued with great learn- at the date when this prosecution was being that the section of the judiciary act of gun; its operation being postponed to a the United States conferring power upon later date. The question here presented is justices of the peace to arrest, imprison, or therefore prematurely presented, is moot, bail persons charged with a violation of the and cannot now be considered. criminal law of the United States, was re An order will be entered here discharging pugnant to the Constitution of the United the appellant. States for the reason that it conferred ju Reversed and rendered. dicial power upon one not an officer of the United States, whereas that Constitution DOWDELL, C. J., and ANDERSON, Me provides that the judicial power of the Unit- CLELLAN, and EVANS, JJ., concur. ed States shall be vested in one Supreme Court and such other inferior courts as Congress may, from time to time, ordain and

(165 Ala. 59) establish. This court, conceding that the

BARNETT V. STATE. power and authority conferred was judi- | (Supreme Court of Alabama. June 30, 1909. cial in its nature, held that it did not fall Rehearing Denied Dec. 16, 1909.) within the meaning of “judicial power” in 1. STATUTES (8 84*)–ENACTMENT-INVALIDITY the sense in which that term is used in the -LOCAL LAWS-CONSTITUTIONAL RESTRICConstitution of the United States. And the court referred to the case of Gaines v. Har- purporting to amend Act Feb. 15, 1899 (Acts

Act July 19, 1907 (Loc. Acts 1907, p. 498), vin, 19 Ala. 491, where a similar provision 1898-99, p. 878), and providing that in capital in our Constitution came under review, and cases a defendant should not be put upon trial where it was held that it was not the in- within five months from the time of the alleged

offense, is void under Const. 1901, § 106, protention of the framers of the Constitution viding that no local law shall be passed, unless to deny to the Legislature the power to con- proof by affidavit that the notice required by fide to ministerial officers, who do not con- this section has been given is spread upon the stitute a part of the judiciary, properly so that the "above” notice was published, but did

journal, where the journal showed an aflidavit called, many duties involving inquiries in not contain a copy of the notice. their nature judicial. In the case referred [Ed. Note.--For other cases, see Statutes, to it was said: "] practice of this as of Cent. Dig. $ 6; Dec. Dig. $ 814.*] all other governments having their judicial, 2. STATUTES ($ 842*) — ENACTMENT-INVALID

ITY -- LOCAL LAWS - CONSTITUTIONAL REexecutive, and legislative departments sep

STRICTIONS-REPEAL. arate and distinct very clearly shows that, Act Dec. 9, 1896 (Acts 1896–97, p. 262), in the administration of laws, inquiries created the T. county law and equity court, and partaking of the nature of judicial investi- by section 28 required the first continuance of

a capital case to be at least five months, exgations are confided to persons other than cept by defendant's written consent. Act Feb. judges, whose acts have never been ques. 15, 1899 (Acts 1898-99, p. 878) amended sectioned on constitutional grounds”-and more crime to be tried in less than five months, ex

tion 28 so as to forbid one accused of a capital in the same line. The statute in this case cept by his written consent. Act Dec. 13, 1900 conferred no power upon the clerk to final. (Acts 1900-01, p. 714), amends sections 2 and ly hear and determine, nor even to com- 25, providing for the continuance in office of mit to bail, but only to issue warrants, court, now designated by amendment as the “T.

the "judge of the T. county law and equity which must be construed to authorize him county court." Act Oct. 1, 1903 (Loc. Acts to issue warrants on probable cause, sup 1903, pp. 309, 310), is entitled "An act to amend ported by oath or affirmation, and returnable, an act, to establish the T. county law and equity

court," etc., and provides “that section 28 of by necessary implication, to the court from said act, as amended by act approved February which they are issued. We are not prepared 15," shall be repealed. Held, the act of 1903 to say that this was an unconstitutional ex- requirement of Const. 1901, $ 106, that a cer

was not invalid for failure to comply with the ercise of power. In re Siebert, 61 Kan. 112, tain notice shall be published of all local acts 58 Pac. 971; State v. Sureties of Krohne, 4 before their introduction; the grounds of objecWyo. 347, 34 Pac. 3; In re Durant, 60 Vt. tion to the notice being that the notice referred

to the act amended as that creating the T. coun176, 12 Atl. 650.

ty "aw and equity” court, which was no longer We are also requested to consider wheth- the title of the court, and that it stated the er the act approved August 13, 1907, and purpose of the act to be to repeal “section 28, commonly known as the “Municipal Code so that capital cases can be tried at any time

as amended by act approved February 15, 1899, Law," had the effect to abolish the inferior I after indictment found,” since the original act

ITY.

ITY.

was still in existence, and was properly referred | ties, shedding some light on the motive which to for purposes of amendment by its own title, brought about the killing. even though the court's name had been altered, (Ed. Yote.--For other cases, see Homicide, and as to the subject-matter of the act as stated Cent. Dig. $ 321; Dec. Dig. § 166.* ] in the notice no one could have been deceived.

11. WITNESSES ($ 337*)-IMPEACHMENT-CHAB(Ed. Note.-For other cases, see Statutes,

ACTER-ACCUSED. Cent. Dig. 8 6; Dec. Dig. $ 842. *)

In a prosecution for homicide, where de 8. CRIMINAL LAW (8 1137*)-APPEAL-ESTOP- fendant testified, the state was properly allowed PEL TO URGE ERROR.

to introduce evidence as to his general character. In a prosecution for homicide, the state (Ed. Note.-For other cases, see Witnesses, cannot claim error in allowing a witness to Cent. Dig. 88 1113, 1129; Dec. Dig. $ 337.*] make a certain statement, where on cross-examination it brought out the same statement.

12. CRIMINAL LAW (8 378*) EVIDENCE

CROSS-EXAMINA(Ed. Note.-For other cases, see Criminal Law,

CHARACTER OF ACCUSED

TION. Cent. Dig. 88 3007–3010; Dec. Dig. $ 1137.*]

In a prosecution for homicide, where de 4. HOMICIDE ($ 171*)-EVIDENCE-ADMISSIBIL- fendant's witness testified that defendant's gen

eral character in the community in which he In a prosecution for homicide, testimony lived was good, it was proper to ask him on that a certain person was not present at the cross-examination if he had not heard that prior time of the killing, but was in Oklahoma, was to the shooting defendant had a difficulty with properly excluded as irrelevant.

the party on the road and shot him. (Ed. Note.-For other cases, see Homicide, [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. $ 171.*]

Cent. Dig. $ 842; Dec. Dig. § 378.*] 5. CRIMINAL Law (8 404*)—EVIDENCE-ADMIS- 13. CRIMINAL LAW (8 72142) – TRIAL - RESIBILITY.

MARKS OF COUNSEL. In a prosecution for homicide by shooting, In a prosecution for homicide, it is not it was proper to allow the clothes which dece permissible for counsel to comment on the faildent was wearing when killed to be exhibited ure to examine a witness who was accessible to the jury, showing the location of the shot.

to both parties. [Ed. Note.-For other cases, see Criminal Law, cent. Diges 1073; Dec. Dig. 721.*]

(Ed. Note.-For other cases, see Criminal Law, Cent. Dig. $ 891; Dec. Dig. $ 404.*] 6. HOMICIDE ($ 175*)–EVIDENCE-ADMISSIBIL

14. HOMICIDE ($ 300*)—TRIAL-INSTRUCTIONS.

In a prosecution for homicide, it was propIn a prosecution for homicide, testimony as

er to refuse instructions requested by defendant to the nature of decedent's wounds, the blood which failed to hypothesize freedom from fault on his clothing, and as to the finding of a car

in the defendant in bringing on the difficulty. tridge near his house, was admissible as tend

(Ed. Note.-For other cases, see Homicide, ing to show what caused his death.

Cent. Dig. 88 627-630; Dec. Dig. $ 300.*] [Ed. Note.-For other cases, see Homicide, Dowdell, C. J., and Simpson and Denson, JJ., Cent. Dig. $ 375; Dec. Dig. § 175.*]

dissenting 7. CRIMINAL LAW (8 413*) – EVIDENCE — AD

Appeal from Tuscaloosa County Court; MISSIBILITY,

In a, prosecution for homicide, it was proper Henry B. Foster, Judge. to refuse to allow a witness to state whether Lee Barnett was convicted of murder, and defendant told him after the shooting that he

appeals. Affirmed. was going to town to surrender to the sheriff, since the defendant could not make testimony Collier & Scrivener and Henry Fitts, fo for himself in that way.

appellant. Alexander M. Garber, Atty. Gen., (Ed. Note.-For other cases, see Criminal Law, Cent. Dig. $$ 928–935; Dec. Dig. $ 413.*) and Thomas W. Martin, Asst. Atty. Gen., for

the State. 8. HOMICIDE (8 171*)–EVIDENCE-ADMISSIBILITY. In a prosecution for homicide, where the

SIMPSON, J. The appellant was indicted testimony of the state related entirely to the for murder in the first degree, and convicted circumstances of the shooting and the nature of of murder in the second degree. The trial the wounds inflicted, testimony by the defendant

was had within less than five months after as to his purchase of oil, who poured it out, and whether he sent it home, which was not the commission of the offense, and before goin answer to any testimony introduced by the ing into the trial the defendant claimed the state, was irrelevant.

benefit of the special act in regard to Tusca(Ed. Note.-For other cases, see Homicide, loosa county, and objected to being put on Dec. Dig. & 171.*]

trial because five inonths had not elapsed 9. CRIMINAL LAW (§ 413*)—EVIDENCE-ADMIS- since the commission of the offense. SIBILITY. In a prosecution, where the state offered no

The act of July 19, 1907, purporting to evidence of flight, it was proper to refuse evi- amend a previous act, and, among other dence that defendant surrendered himself to the things, providing that, in capital cases, a de sheriff, or as to who went to town with him. (Ed. Yote.-For other cases, see Criminal Law, in five months from the time of the commis

fendant should not be put upon trial withCent. Dig. $ 931; Dec. Dig. § 413.*]

sion of the alleged offense (Loc. Acts 1907, 10. HOMICIDE (8 166*) — EVIDENCE-ADMISSI

p. 498), is void, on account of the failure to BILITY.

In a prosecution for homicide, where there comply with the requirements of section 106 was no effort to prove the particulars of the of the Constitution of 1901. The journals difficulty, it was proper to allow the state to show an affidavit that “the above notice was ask defendant whether he and decedent had a difficulty the evening before the shooting, as it published,” etc.; but the notice is not set out is always permissible to show previous difficul- l in the journal. The appellant contends that

such provision is the law of that court at, constitutional requirement. No one could any rate, because the act of 1903, which pur- have been deceived by this notice, for it ported to repeal the same section in a for- states distinctly that said section 28 is to be mer act, is itself void, for failure to comply repealed, and the notice might have stopped with the same constitutional provision. The there. The mere statement as to what is to various acts in regard to said court are as be accomplished by this repeal does not affollows:

fect the validity of the notice. A reference to The court was organized by the act of De- the act would show exactly what would be cember 9, 1896, entitled "An act to establish accomplished by said repeal. In the case of the Tuscaloosa county law and equity court" | Green v. State, 143 Ala. 2, 39 South. 362, this (Acts 1896–97, p. 262), and section 28 of that court held that the notice was sufficient as to act provides that in capital cases, or cases one of the other sections of the act, but did involving punishment by imprisonment for not pass upon this section 28. We hold now five years or more, if the cause is continued, that the notice was sufficient as to section the first continuance shall be for not less 28, and it now stands repealed. than five months, unless the defendant con There was no error in overruling the obsent thereto in writing." By the act of Feb-jection to the question to the witness Mrs. ruary 15, 1899, said section 28 was amended Garrison as to what Barnett (the defendant) so as to read: “That no defendant shall be said just immediately before the shooting, put upon trial for any offense which may be and as to what was said to him at the same punished capitally, within five months from time. This was a part of the res gesta, and the time of the commission of the alleged of- served to explain the motives of the defendfense, unless the defendant consent thereto ant's action, and the causes which led up to in writing, for a trial within a shorter time." the killing. Collins'v. State, 138 Ala. 57, 34 Acts 1898–99, pp. 878, 880. The act of De- South. 993; Viberg v. State, 138 Ala. 100, 35 cember 13, 1900, amends sections 2 and 25, South. 53, 100 Am. St. Rep. 22. providing for the continuance in office of the The defendant asked the witness Mrs. judge “of the said Tuscaloosa law and eq- Garrison (widow of the deceased), on crossuity court, now designated, by amendment, examination, if it was not a fact that Mr. as the Tuscaloosa county court.” Acts 1900– Barnett very often passed along by her front 01, p. 714. The act of October 1, 1903, is en- steps, going to and fro to slop his hogs. The titled "An act to amend an act to establish witness answered, "Yes, he went there often the Tuscaloosa county law and equity court," to slop his hogs; but I never knew him to etc., and among other things provides: “That slop them that soon in the morning.” The section 28 of said act as amended by act ap- defendant moved to exclude all that part of proved February 15, 1899, be and the same is the answer, “but I never knew,” etc., and the hereby repealed." Loc. Acts 1903, pp. 309, court overruled the objection. If this was 310.

error, it was without injury, as the state, on It is first insisted that the notice does not re-examination, brought out the same stateshow what act was intended to be amended ment, and it was legal testimony. or repealed. It will be noticed that the orig. One witness stated, in answer to a ques. inal act of 1896 has never been repealed. tion on cross-examination, that one Crosby The amendatory acts have merely amended was not there, at the time of the shooting, certain sections of that act, and, although by but was in Oklahoma. It was entirely ira later act the name of the court was chang- relevant how long said Crosby had been in ed to the "Tuscaloosa county court,” yet, for Oklahoma, and there was no error in suspurposes of amendment, it is proper to refer taining the objection to that question. to the act creating the Tuscaloosa law and There was no error in allowing the clothes, equity court, as the notice did. The notice which deceased was wearing when killed, exalso states, as one of the purposes of the bill hibited to the jury, showing the location of to be introduced, that said act is to be amend the shot, etc. Holley v. State, 75 Ala. 14, 18. ed "by repealing section 28, as amended by The same is true with regard to the testiact approved February 15, 1899, so that cap-mony as to the nature of the wounds, blood ital cases can be tried at any time after in- on the clothing of deceased, and to the finddictment found." It is claimed that capital ing of a cartridge near the house of deceascases were then allowed to be tried at any ed. These were all circumstances tending to time after the indictment found, with the show what brought the deceased to his death, consent of the defendant, and that this notice and, if there was no evidence showing what does not contain the substance of the pro- kind of a gun the defendant had, these facts posed amendment, but should have stated could not prejudice him. There was no disthat the section of the act was to be re- pute about the fact that the defendant shot pealed, so that the defendant could be tried the deceased. at any time after indictment found, without There was no error in sustaining the obhis consent.

jection to the question to the witness Ellison It is unnecessary to refer to the many de- as to whether Barnett told him, after the liverances which have been made by this shooting, that he was going to town to sur

not make testimony for himself in that way. court did not err in regard to the comments Ferguson v. State, 134 Ala. 64, 70, 32 South. of defendant's counsel in that particular. 760, 92 Am. St. Rep. 17.

Crawford v. State, 112 Ala, 3, 21 South, 214. The questions to the defendant, as a wit The charges requested by the defendant, ness, by his counsel, as to whether he bought besides other defects, fail to hypothesize any oil at the store, who poured it out, and freedom from fault in the defendant in whether he sent it home, called for irrelevant bringing on the difficulty, and were properly testimony, and there was no error in sus. refused. Harrison v. State, 144 Ala. 21, 40 taining objections to them.

South. 568; Mitchell v. State, 133 Ala. 66, The testimony of the state related entirely 32 South. 132. to the circumstances of the shooting, the na The judgment of the court is affirmed. ture of the wounds inflicted, etc., and the Affirmed. Avidence last referred to was not in answer co any testimony introduced by the state. ANDERSON, MCCLELLAN, MAYFIELD,

The state did not offer any evidence of and SAYRE, JJ., concur. DOWDELL, O. J., flight, and consequently there was no error in and SIMPSON and DENSON, JJ., dissent. sustaining the objection to the question to the defendant as to whether he surrendered himself to the sheriff. Pate v. State, 94 Ala.

(165 Ala. 121)

SCRUGGS v. STATE. 14, 10 South. 665. It was equally irrelevant as to who went to town with the defendant. (Supreme Court of Alabama. Dec. 16, 1909.)

There was no error in permitting the state 1. CRIMINAL LAW (8 678*) – CRIMINAL REto ask the defendant whether he and Barnett

SPONSIBILITY-EVIDENCE-ELECTION.

The fact that the owner was not positive had a diffculty the evening before the shoot

as to when he saw accused hunting on his land ing. There was no effort to prove the partic- without permission, but thought that it was aftulars of the difficulty, and it is always per- er Christmas, and the fact that a witness who unissible to show previous difficulties, shed was there but once fixed the time in November ding some light on the motives which brought as to require an election ; but the court, sitting

did not show separate and distinct offenses, so about the killing.

as a jury, might find that the owner and the The defendant having been examined as a witness referred to the same offense. witness, the state was properly allowed to

(Ed. Note.-For other cases, see Criminal Law,

Dec. Dig. $ 678.*] introduce witnesses as to the general character of the defendant. This examination re

2. CRIMINAL LAW (8 1120*)-APPEAL-RECORD

-QUESTIONS REVIEWABLE. lated merely to his general character, as

Where the record fails to show a redirect bearing upon his credibility, and that was examination of a witness, the error, in overrulthe extent to which the state could inquire ing a motion to exclude parts of the testimony into his character. The defendant then in- of the witness on redirect examination, will not

be considered. troduced a witness, who testified that he

[Ed. Note.-For other cases, see Criminal Law, knew the general character of the defendant Cent. Dig. $2931; Dec. Dig. $ 1120.*] in the community in which he lives, and that 3. CRIMINAL LAW ($ 254*) — EVIDENCE-Surit is good; also that he had never heard any. thing against him, and that his general char

Where the state's evidence was sufficient to acter for truth and veracity was good.

go to the court, sitting as a jury, to create rea

sonable inferences of the guilt of accused, the On cross-examination, the state asked said refusal to exclude all of the state's evidence was witness: "Have you not heard, and did you not erroneous. not hear, before Mr. Garrison was killed,

(Ed. Note.-For other cases, see Criminal Law, that the defendant, Barnett, had a difficulty Dec. Dig. $ 254.*] with a party on the road and shot him?" | 4. CRIMINAL LAW (8 1158*)-APPEAL-FIND

INGS--CONCLUSIVENESS. This question was objected to, and the ob

A finding by the court, sitting without a jection overruled. It is the opinion of the jury, on oral testimony of witnesses appearing writer, and of DOWDELL, C. J., and DEN- in court

will not be versed, unless plainly

erroneous. SON, J., that in this the court erred. The defendant's character for peaceableness or the Dec. Dig. $ 1158.*]

[Ed. Note.- For other cases, see Criminal Law, contrary had not been put in issue by the defendant himself, and the state could not

Appeal from Law and Equity Court, Walkinquire into his character in that regard. 1

er County; T. L. Sowell, Judge. Wigmore on Evidence, pp. 125, 126, 8 57. The

George Scruggs was convicted of hunting majority of the court, however, to wit, AN

on the lands of Paul Eads without permisDERSON, MCCLELLAN, MAYFIELD, and sion, and he appeals. Affirmed. SAYRE, JJ., hold that the admission of this Alexander M. Garber, Atty. Gen., for the testimony was proper, in reply to the exam- State. ination by the defendant on general character.

ANDERSON, J. The witness Eads was It is not permissible for counsel to com- not positive as to when he saw the two men ment on the failure to examine a witness on his land, but thought it was after Christwho was accessible to both parties, and the mas; and the fact that the witness Shaw

FICIENCY.

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