Ex Parte Bell , 200 Ala. 364 ( 1917 )

As a defense to the prosecution of this cause in the state court, the defendant filed several pleas, in substance setting up former jeopardy by reason of his conviction in the mayor's court of Bessemer. The demurrer of the state to said pleas was sustained by the trial court, and the ruling affirmed in the Court of Appeals. 75 So. 181. The Court of Appeals treats only one ground of demurrer, which they considered vital, numbered 8, and which reads as follows:

"Because the offense set forth in said plea was an offense against the city of Bessemer for the violation of a municipal ordinance thereof, and this prosecution is for the violation of the law of the state of Alabama, and is no defense to this prosecution."

In Harris v. State, 128 Ala. 41, 29 So. 581, the court said:

"It is not denied that the same act may constitute an offense both against the state and the municipal corporation, and the state and municipality may each punish it without violation of constitutional principle."

The opinion of the Court of Appeals points out the amendment to section 1222, Code of 1907 (Gen. Acts 1915, p. 724), wherein that clause of said section, providing that a judgment in the recorder's court should be a bar to a prosecution for the same offense in the state court, was eliminated. Therefore as correctly held by the Court of Appeals, the conviction of one in the municipal court for a violation of the municipal ordinance is not pleadable in defense to a prosecution of the same offense in the state court.

Counsel for petitioner directs attention to the fact that under section 1221 of the Code of 1907, the recorder has also original and concurrent jurisdiction with the county court of all misdemeanors committed within the city or within the police jurisdiction thereof; and it is insisted that, under the authority of Brooke v. State, 155 Ala. 78, 46 So. 491, and Jackson v. State, 136 Ala. 96, 33 So. 888, the conviction in a municipal court was necessarily a bar to further prosecution in the state court. In Brooke v. State, supra, however, the pleas of defendant disclosed that the defendant was tried for an offense against the state, for the violation of a state law. In the instant case, the opinion of the Court of Appeals is rested, as above disclosed, upon the eighth assignment of demurrer to said pleas above quoted, to the effect that said pleas show the defendant was tried and convicted for the violation of a municipal ordinance, and the principle recognized in Harris v. State, supra, was therefore directly applicable.

The holding of the Court of Appeals is therefore in harmony with the decisions of this court, and the petition for writ of certiorari will accordingly be denied.

Writ denied. All the Justices concur.