Banks v. State , 2 Ala. App. 247 ( 1911 )

PELHAM, J.

The act creating the county court of Clarke county (Local Acts of Alabama 1907, pp. 360-377) provides (section 7) for a trial by jury when the person standing charged before the court with a misdemeanor makes a. demand for a jury trial “at the first regular term of said court at which said case is triable.” Section 6 of the act provides for regular terms of the court on the third Monday in each month of the year, and that the regular terms in each January, and July shall be for the trial of jury cases. Section 8 provides that when a jury trial is demanded by the.defendant the court must make an order continuing the case to the next jury term.

Tlie bill of exceptions in this case states that the defendant, before proceeding'to trial, moved the court to quasb the affidavit and warrant upon which the defendant was brought before the court, which motion was granted. Another affidavit- was made and warrant issued, upon which the defendant was tried. The defendant, upon being arraigned on the charge thus preferred, demanded a trial by jury, and moved for a continuance of the cause, upon the ground that it was a new case. The court overruled the motion, and the defendant duly excepted. This proceeding was had during the regular jury term of the court in July, and the defendant was put upon his trial and given a trial by jury.

The manifest purpose and legislative intent of the provisions of the statute referred to is to secure to a defendant, making a seasonable demand \tkerefor, a trial by jury; and the provisions of section 8 of the act, requiring an order of continuance “to the next jury term of said court” when a demand has been made for a jury trial, could have had no other purpose than to secure a continuance to such a time as the defendant could be accorded a trial by jury, and has application, as referable to continuances, to a demand being made at one of the many terms of the court provided for when no jury was in attendance on the conrt, and no opportunity for a jury trial to be had at that term. The defendant, being charged at a jury term with the commission of an offense, and demanding a trial by jury, receives all the benefit intended to be conferred upon him by statute when he is accorded a jury trial; and the provisions of the statute in this behalf and the legislative intent is fully accomplished by giving him such trial.

Whether or not the defendant was entitled to a continuance for the purpose of preparing a defense, having his witnesses summoned, etc., was largely a matter of discretion with the trial court; and the record shows no abuse of the discretion.—Murph v. State, 153 Ala. 67, 45 South. 208; Kelly v. State, 160 Ala. 48, 49 South. 535.

No objection was made or exception reserved to the manner in which the Avritten charge requested by the defendant Avas given to the jury, or for failure of the judge to make the customary indorsement on it; and, the charge having been given, the court’s action in these particulars urged by appellant in brief as error, in the absence of an objection or exception reserved below, is not available on review.—Jenkins v. State, 82 Ala. 25, 2 South. 150.

The evidence Asms sufficient to support a finding of guilty of the offense, charged. The previous warning required by the statute to support a conviction implies a notice to the defendant not to go upon the premises. The'notice testified to by the state’s witnesses constituted a sufficient warning.—Motes v. Bates, 74 Ala. 374, 378; Owens v. State, 74 Ala. 401.

No reversible error is shoAVn by the record, and the case Avill be affirmed.

Affirmed.