McKinstry v. City of Tuscaloosa , 172 Ala. 344 ( 1910 )

McCLELLAN, J.

A party accused of a violation of a municipal ordinance is entitled in the municipal court “to be apprised of the nature and character of the proceeding instituted against him by a written complaint.” — Mayor and Aldermen of Birmingham v. O’Hearn, 149 Ala. 307, 42 South. 836. But, if one so accused proceed to trial without demanding, in the municipal court, a written complaint, setting forth the accusation against him, he must be held to have waived the right and cannot for the first time avail of it on appeal. — Aderhold v. Anniston City, 99 Ala. 521, 12 South. 472; Mayor and Aldermen v. O’Hearn, supra. The more recent decisions delivered here in Arzumanian v. City of Birmingham, 165 Ala. 374, 51 South. 645; City of Selma v. Shivers, 150 Ala. 502, 43 South. 565, and Barron v. City of Anniston, 157 Ala. 399, 48 South. 58, did not depart from the rule of waiver before stated. The record before this court in Arzumanian’s appeal left it entirely uncertain whether he was proceeded against as for a violation of a municipal ordinance or of a state statute. So that in the state of that record the question of waiver of the right tó a written accusation as for a violation of a municipal ordinance was not taken or involved. In Shivers’ appeal an affidavit was made. The inquiry of waiver, with which this appeal is concerned, was not reckoned with by this court in determining that appeal. The opinion in Shivers’ appeal well declares that the prosecution was quasi criminal only. Barron’s appeal declared and applied rules of evidence applicable to criminal cases, and so held that the measure of proof to justify a conviction, where imprisonment or hard labor was the penalty, to be that guilt be established beyond a reasonable doubt, and that the wife of the accused husband was incompetent ás a witness in his behalf.

Whatever may be the conceived basis of argument that such prosecutions are criminal prosecutions, laid in the Shivers and Barron Cases, it has not been here ruled that such is the character of prosecutions for violations of municipal ordinances. If it were ruled that such prosecutions were criminal, the result would be the express repudiation of the doctrine underlying the pronouncements made in Mayor v. Allaire, 14 Ala. 400. Reference to Sheppard’s Annotations (to our reports) will sow the frequency with which that decision has been since accepted as sound. Furthermore, if such prosecutions should be held to be criminal, it does not appear how a refusal to apply to such prosecutions all constitutional and statutory provisions applicable to criminal prosecutions for offenses against the penal laws of the state could be justified. So far as the state of decisions by this court on the matter is concerned, the doctrine is that such prosecutions are quasi criminal only. Has the Municipal Code (Acts 1907, p. 790, et seq.,, copied in the Political Code, c. 32) changed the character of such prosecutions from quasi criminal only to criminal prosecutions? Counsel for appellant insist that that result has been effected. In support of their contentions sections 60 and 68, inclusive, of the Municipal Code (Pol. Code 1907, §§ 1215-1222, inclusive), and section 1451 of the Political Code (1907), are cited in brief.

Section 60 of the Municipal Code deals with the jurisdiction, powers, and duties of the recorder, and in terms recognizes that the jurisdiction conferred comprehends matters quasi criminal. The term “quasi criminal” has or could have when employed in municipal enactments reference only to prosecutions for violations of municipal ordinances. Such has for more than 50 years been the meaning and reference of the term. That ériminal jurisdiction, such as ex officio justices of the peace have, was conferred, obviously emphasizes the legislative intent not to radically change the character of municipal prosecutions from quasi criminal to criminal proceedings, but, on the contrary, evinces a clear purpose to observe and retain the distinction in nature between them. That the prescribed method of procedure on appeals from convictions for violations of municipal ordinances is that pursued in the trial of criminal cases appealed from the judgments of justices of the peace (Code, § 1451) does not change the character of the proceeding itself from quasi criminal to criminal. The effect of the statute is to assimilate to the trial of offenders against municipal ordinances the procedure in criminal appeals from justice’s courts. Section 64 (Code, § 1218) consists with the indicated assimilated mode of procedure on appeals. Sections 67 and 68 treat of the recorder’s jurisdiction, of the bar of further prosecution for the unlawful act of which a conviction is had, and of the fines and punishments to be imposed. It is not written in them, nor are the provisions thereof susceptible of affording an inference, that such prosecutions are criminal, and not quasi criminal only. The nature and character of a prosecution for a municipal offense is now, as it has always been in this state, a quasi criminal proceeding only. Hence constitutional and statutory provisions, otherwise than the before-stated assimilation in matters of procedure has been effected, having reference to criminal prosecutions by the state, are not applicable to the violation of municipal ordinances. It therefore follows that the court below did not err in respect of its rulings on the pleadings wherein questions of jurisdiction were involved. The failure of the defendant to demand in the municipal court a complaint stating the accusation against, him precluded him from asserting its absence on appeal.

The competency of Dave Freeman as a witness for the municipality was assailed on the grounds that he was a “moral imbecile,” was incapable of separating, in statement, truth from falsehood, and could not appreciate the obligation of an oath. It was shown that some years before he had been in custody at the Hospital for the Insane. After taking testimony of an expert personally familiar, with the witness’ mental state before and about the time of the trial, who testified in support of the grounds of objection indicated, and, on the other hand, after hearing a partial examination of Freeman, and after an examination of him by the court and its evident opportunity of observing his appearance, manner, and mode of statement, the court ruled him to be a competent witness. We cannot pronounce the conclusion in affirming the competency of the witness erroneous. The rule is that the testimony of an idiot or a lunatic may be received “if he appears to have sufficient understanding to comprehend the obligation of an oath, and to be able to give correct (not necessarily ore tenus) answers to questions put.” — Jones on Ev. §§ 719, 723; Worthington v. Mencer, 96 Ala. 310, 11 South. 72, 17 L. R. A. 407. The determination of the inquiry of competency vel non was for the court.— Author, supra. The appearance and demeanor of and the statements made by the proffered witness may have reasonably satisfied the court of his possession of the requisite intelligence and ability to communicate his responses to questions within the rule stated.

Charges 1 and 2 were well refused. They each would hinge the conclusion of guilt upon the testimony of one witness examined on the trial, whereas there was other evidence tending to establish guilt.

There is no error in the record. The judgment is affirmed.

Affirmed.

Dowdell, O. J., and Simpson, Anderson, and Sayre, JJ., concur.