McClellan v. State , 118 Ala. 122 ( 1897 )

BRICKELL, C. J.

The indictment is founded on the statute, approved February 9th, 1897, (Pamph. Acts, 1896-97, p. 683), which renders it unlawful, and an indictable misdemeanor, “to sell, give away, or otherwise dispose of any spirituous, vinous, or malt liquors, in Calhoun county,” -with an exception of towns or cities having authority to regulate and license the sale of such liquors within their territorial limits. The indictment corresponds to the form of indictment prescribed by the Code, for the sale of such liquors without license. — Cr. Code, 1896, Form 79. The form is by section 5077 of the Code declared sufficient for the violation of any special and local laws regulating or prohibiting the sale of such liquors. The indictment pursues the words of the statute, sell, give atoay, or otherwise dispose of. A sale, or a gift, or other disposition, is violative of the statute, constituting an offense of the same character, subjecting to the same punishment. With the commission of either, the statute authorizes the defendant to be charged in the alternative in the same count. — Cr. Code, 1896, §4913. The demurrers to the indictment were properly overruled.

Since the decision in Connelly v. State, 60 Ala. 89, it has been regarded as settled that a defendant charged with a misdemeanor, may of his own election waive a trial by jury, and submit to a trial by the court. Upon this theory a number of inferior courts have been created and organized, and it is now too late to enter upon a discussion of it. The statute declaring the power and jurisdiction of the city court authorizes the trial of misdemeanors by the judge without the intervention of a jury, unless the defendant within the first three days of the jury term, after the docketing of the case, in writing demands a trial by jury, and neglect to make the demand operates a waiver of the right to such trial. The statute afforded the defendant full opportunity to elect a trial by jury if he had desired it. The cause was docketed in tire court, and all that was required of him was the expression in wanting within the prescribed time of his demand for such trial. When the whole statute is read, the manifest purpose of the requirement, is, that the court should be the better able to control the summoning and attendance of juries during the term, facilitating the transaction of business. Neglecting to make the demand was a waiver of trial by jury; a waiver be could not subsequently of bis own volition retract. If there were any peculiar circumstances, attending tbe waiver, wbicb in tbe exercise of a sound judicial discretion would have justified tbe court in relieving defendant from its consequences, they are not disclosed by tbe record.

We find no error in tbe record, and tbe judgment must be affirmed.