Sale v. State , 68 Ala. 530 ( 1881 )

STONE, J.

Motion was made in the County Court to quash the affidavit and warrant of arrest, on two grounds : First, under seetion 779 of the Code of 1876, which provides that “ it shall not be lawful for a solicitor to commence a prosecution by his own affidavit,” with certain exceptions which do not affect this case. It is a sufficient answer to this objection, that the present prosecution was not commenced by the affidavit of the solicitor, nor even by that of his assistant.

Seeond: It is urged that the affidavit is insufficient in substance to support the warrant that ivas issued. The precise point of this objection is, that inasmuch as the eharge in this case (the exhibition of a gaming-table) is not an offense to person or property, the affidavit prescribed by section 4702 of the Code of 1876 did not justify the warrant; that to authorize a warrant for the offense here charged, the complaint must conform to section 1647 to 4650 of the Code of 1876. Looking into the history of our legislation on this subject, we find the four sections above referred to were first made statute law of this State in the Code of 1852. Sections 8377, 3379, 3380, 8381, are, in substance, the same as sections 4647 to 4650 of the present Code. They became part of Stone & Shepherd’s Penal Code of 1866, as sections 428 to 431, inclusive; and were incorporated, without alteration, as sections 3977 to 3980 in the Code of 1867. Thence they were transferred to the Code of 1876. These sections were adopted when we had no County Courts of criminal jurisdiction, and when justices of the peace had no authority to finally try any person charged with a misdemeanor. They relate to “ preliminary proceedings,” as is shown in all the Codes.—Stone & Shepherd’s Code, chap. 5, art. 1; Code of 1867, same chapter and article; Code of 1876, chap. 4, art. 1. The sections referred to above, as will be shown by their language, were intended as a guide in proceedings before a committing magistrate, fiihey were not, at the time of their enactment, and could not be intended as a guide in the trial of misdemeanors before a justice of the peace, or before the County Courts; for, atthat time, neither justices of the peace nor County Court had such jurisdiction. The County Court, as a court of criminal jurisdiction, was created by Stone & Shepherd’s Code, and by the same Code justices of the peace were clothed with certain limited criminal jurisdiction. That Code was adopted February 23d, 1366. If that Code had been silent as to the manner of instituting proceedings before these courts of inferior jurisdiction, possibly the sections referred to above — 4647 to 4650 — would govern. But it was not silent. It not only created these courts of limited criminal jurisdiction, but it declared in what manner the jurisdiction could be brought into exercise. Chapter 7 of that Code, beginning with section 482, is devoted to “ Proceedings in the County Court.” It was made part of the Code of 1867, chap. 7, beginning with section 4032, and copied into the Code of 1876 as chap. 6, beginning with section 4702. The language of this provision has undergone no change since its first enactment. Section 473 Stone & Shepherd’s Code, 4032 Code of 1867, 4702 Code of 1876, gives the substance of ah affidavit to procure a warrant of arrest. Its language is : “A party aggrieved, or desiring to bring a charge of misdemeanor before the County Court, may apply to the judge thereof, or to some justice of the peace of the county, for a warrant of arrest; and upon making affidavit in writing, that he has probable cause for believing, and does believe, that an offense [designating the misdemeanor by name, or by some other phrase which, in common parlance, designates it] has been committed in said county by C. D. [naming the offender], on the person [or property, as the case may be] of A. B. [naming the person injured], then the judge of said court, or justice of the peace, shall issue his warrant of arrest.” The next section furnishes a form for the warrant of arrest. “ The County Courts have original jurisdiction, concurrent with the Circuit and City Courts, of all misdemeanors committed Jn their respective counties.”—Stone & Shepherd’s Code, § 383; Rev. Code, § 3931; Code of 1876, § 718. Now, section 718 of the Code of 1876 clothes the County Courts with jurisdiction of all misdemeanors, and section 4702 prescribes the constituents of the requisite affidavit “ to bring a charge of misdemeanor before the County Court.” We should do great violence to this language, if we limited its operation to cases of injury to persons or property. The words, ‘ person ’ and property,’ employed in that section, were given as directions, when injuries to person or property are complained of. It wasffiot intended they should narrow the operation of the general words employed in the first part, of the section. We should give to each clause of the statute some operation, if we can.—Brooks v. Mobile School Comm’rs, 31 Ala. 227.

The objection to the competency of the judge, if available anywhere, is no ground for reversing the judgment.—Masterson v. Matthews, 60 Ala. 260; Mayo v. Stoneum, 2 Ala. 390.

We think the County Court did not err in refusing to quash the venire. 'Governed by our statutory system on the subject, and by its analogies, we think the clause of the act approved February 13th, 1879 (Pamph. Acts, 279), for the alleged non-observance of which the motion was made, must be treated as directory.—Code of 1876, § 4759; Cross v. The State, 63 Ala. 40. Aside from this principle, we are not convinced there was any substantial departure from the statute, in the drawing of the jury in this case. The intention of the statute was, that the jurors should be drawn from the body of the qualified jurors of the county. When there was such list already prepared, and the drawing was from that list, surely the legislature did not intend that, whenever, and as often as there was an order to draw twenty-four jurors for a term of the County Court, the sheriff should procure and furnish a new list, and the drawing should be had from it.

Affirmed.