Kreutner v. State , 16 Ala. App. 553 ( 1918 )

I am unable to yield my assent to the opinion of the majority in this case.

This cause should be reversed for two reasons: The defendant was deprived of his right of trial by jury, and the evidence was insufficient to support a conviction. I see no escape from the conclusion that the defendant was entitled to a trial by jury. The second section of the act of the Legislature approved September 28, 1915, is as follows:

"That in all misdemeanor causes in the circuit court, the issue and question of fact shall be tried by the judge of the court without the intervention of a jury except in causes where a trial by jury is demanded in writing by the defendant, and such written demand filed in the cause with the clerk of the court on, or before the first sounding of the cause if the cause is sounded within thirty days after the defendant has been arrested or taken into custody after the finding of the indictment, or within thirty days after the defendant has appealed if the cause is brought to the circuit court by appeal, and if such cause is not sounded within thirty days after the defendant has appealed or been arrested or taken into custody after the finding of the indictment, then such written demand must be filed with the clerk within thirty days after the defendant has appealed or been arrested or taken into custody after the filing of the indictment, a failure to demand in writing a trial by jury as herein provided shall be held and deemed to be a waiver by the defendant of a trial by jury." Acts 1915, p. 940.

The court holds that this act does not mean what it says and does not apply to "all misdemeanor causes in the circuit court," because of the provision of law found in the thirty-second paragraph of the act of the Legislature of January 23, 1915, a copy of which paragraph is set out in full in the opinion of the court. The court then proceeds to insert, by way of construction, into the act of September 28, 1915, a clause which makes that act read as though the Legislature had said "that in all misdemeanor causes in the circuit court,except prohibition causes," etc. In italics is the clause which has been added to the act of September 28th by the decision of the court in this case.

Neither reason nor authority can justify this decision. The act of September 28, 1915, is a remedial act passed, as the proceedings of the Legislature show, to take the place of a multitude of practice acts, and to make the procedure, upon the subject of the act — a waiver of trial by jury in all misdemeanor causes in the circuit court — uniform. See Report of Recess Committee on Judiciary.

The language used by the Legislature in the act of September 28th is clear, certain, and unambiguous. A rule of procedure upon the subject of the waiver of jury trials in all misdemeanor causes in the circuit court is laid down in plain, simple language, without qualification, exception, or limitation. The legislative will is expressed as unmistakably as human language can express it, and when this is the case, and when we are dealing with a remedial statute, the duty of the court is plain. The court should accept the act as the Legislature has seen fit to write it. Where the act, as is the case here, is free from any sort of ambiguity or uncertainty, no other course is left open to the court except to declare the will of the Legislature to be the law, as that will has been expressed. Southern Express Co. v. Brickman Co., 187 Ala. 637,65 So. 954; Fuller v. American Supply Co., 185 Ala. 512,64 So. 549; Thomason v. Court of County Commissioners,184 Ala. 28, 63 So. 87; State v. Lamar, 178 Ala. 77,59 So. 473; Blake v. State, 178 Ala. 407, 59 So. 623; Ex parte Herrington, 87 Ala. 1, 5 So. 831.

The act of September 28, 1915, should be liberally construed, not only because it is a remedial act, but even for a still greater reason, because it concerns a citizen's constitutional right of trial by jury. No restricted meaning or limitation should be placed upon its language; but, on the contrary, it should receive a liberal construction in favor of the defendant and against the state. As broad a scope should be given to the act of September 28th in favor of a defendant and against the state as its language will permit. If the Legislature by an act or a series of acts has left in doubt the question whether a defendant has waived his constitutional right of trial by jury, the law requires the court to resolve the doubt in favor of the defendant. As was said in Curlee v. State, 75 So. 268, by Brown, P.J., speaking for the court:

"The statute, which deprives the defendant of the constitutional right of trial by jury upon failure to make demand therefor within a specified time, will be strictly construed against the state, and liberally in favor of the accused."

This rule can mean but one thing: The Legislature must, in its acts limiting the citizens' constitutional right of trial by jury in criminal cases, remove the matter beyond doubt and uncertainty, and, if the Legislature falls to do this, the doubts will be resolved against the state and in favor of the defendant.

Let us apply this to the case in hand. In the act of January 23d, one charged with violation of the prohibition law is allowed 5 days within which to demand a trial by jury. In the act of September 28th, one charged with a misdemeanor in the circuit court has a longer time than this, though not more than 30 days, within which to demand a trial by jury. A violation of the prohibition law is a misdemeanor, and an indictment for the same is returned in the circuit court. Is it a matter of reasonable doubt which act applies to a cause such as we have before us? If it is, then the law requires the court to adopt the more liberal of the two acts, to construe the law strictly against the state, and liberally in favor of the accused. In the opinion of the court, the reverse of this has been adopted as the rule of construction.

The Legislature, however, has not left this matter even in doubt. There can be but one meaning placed upon the language of the act of September 28, 1915. It lays down in unmistakable language a rule of procedure for "all misdemeanor causes in the circuit court," and therefore for violations of the prohibition law, prosecuted in that court. The act of January 23d does not even render doubtful the meaning of the act of September 28th, applying the most technical rules of statutory construction to the two acts. The decisions cited by the court, and the quotations found in the opinion of the court, when properly considered, fail to support the conclusion announced. The act of September 28th is as special and specific in its nature and effect as an act can be. It "fully embraces the subject-matter of the earlier" act with regard to the waiver of jury trials in "all misdemeanor causes in the circuit court," and, being the last expression of the legislative will upon this subject, takes precedence over the earlier act. City Council of Montgomery v. National Bldg. Loan Ass'n, 108 Ala. 336, 18 So. 816; Ex parte Herrington, supra.

Nor can it with justice be argued that the act of September 28th, when accepted precisely as the Legislature has written it, impairs or affects in any material respect the act of January 23d, or renders more difficult the enforcement of the prohibition law. The reasoning of the court upon this aspect of the case is without merit and without any foundation of fact to rest upon. In order to give effect to the act of September 28th, without reading into it an exception or limitation repugnant to its very language, it is not necessary to declare that the provision found in paragraph 32 of the act of January 23d was repealed thereby. On January 23d, the act of this date operated in all the nisi prius courts of the state, including the circuit court. All of these courts were in existence on September 28, 1915, and continued in existence until January, 1917. By the act of September 28th, "all misdemeanor causes in the circuit court," as far as the defendant's right to a trial by jury was concerned, became the subject of special, specific, and detailed legislative regulation. After this date, each of these acts had a field of operation. The one regulated the procedure relating to a demand for a jury trial in the circuit court, "in all misdemeanor causes," and therefore prohibition prosecutions, and the other regulated this procedure for prohibition causes in all the other numerous courts of the state. The circuit courts were withdrawn from the influence of the provision of law in paragraph 32 of the act of January 23d, though this provision was not repealed thereby. A field of operation was left for the act of January 23d, without distorting or limiting the plain and simple language of the act of September 28th. State v. Southern Express Co., 164 Ala. 529,51 So. 159; Ferguson v. Com. Court of Jackson County,187 Ala. 645, 65 So. 1028.

Every consideration and every sound principle of statutory construction would uphold, in its entirety, the act of September 28th, and the interpolation into that act of the exception placed there by the court is nothing more or less than judicial legislation.

The evidence was insufficient to support the judgment of conviction. Oldacre v. State, ante, p. 151, 75 So. 827; Fair v. State, ante, p. 152, 75 So. 828; Newell v. State, ante, p. 77, 75 So. 625.

For the reasons herein stated, I cannot agree with the court in its conclusion in this case.