Wilson v. City of Birmingham ( 1951 )

PRICE, Judge.

Appellant was convicted in the circuit court on a charge of possessing lottery tickets in violation of Section 600 of the General City Code of Birmingham, Alabama.

The first assignment of error is based upon the action of the trial court in overruling appellant’s demurrer to the complaint, on grounds asserting the unconstitutionality of the ordinace on which the complaint is based. Ordinance 600 was held to be constitutional in Fiorella v. City of Birmingham, 35 Ala.App. 384, 48 So.2d 761, certiorari denied 254 Ala. 515, 48 So.2d 768.

Assignment 4 raises the question of the legality of the sentence. The jury found defendant guilty as charged in the complaint. The court proceeded to sentence defendant to perform hard labor for the City for a period of one hundred eighty days as a punishment for the offense, and sentenced him to additional hard labor for the county to pay the costs. It is insisted that since the jury by its verdict imposed no punishment the court was without authority to impose a hard labor sentence. Such contention is without merit. This question was reviewed by this court in the case of Johnson v. City of Jasper, 35 Ala. App. 82, 43 So.2d 843, citing recent decisions of the appellate courts.

Officer Goldstein, a member of the police force for 29 years, and assigned to the detective division 14 of those years, testified that based on his experience and observation in investigating lotteries, the slips of paper found in defendant’s pocket were such as is customarily or usually used, -or suitable to be used, in the operation of •a lottery. Assignment 7 is based on the court’s ruling in allowing this testimony by the officer. The witness was qualified to so testify. Ford v. City of Birmingham, 35 Ala.App., 371, 47 So.2d 287; Reynolds v. State, 29 Ala.App. 139, 193 So. 192; Brooks v. City of Birmingham, 31 Ala.App. 579, 20 So.2d 115.

There are several assignments of ■error but under the rule we have considered only those stressed in brief of counsel. Supreme Court Rule No. 10, Code 1940, Title 7, Appendix; Maddox v. City of Birmingham, ante, p. 9, 52 So.2d 164; Simmons v. Cochran, 252 Ala. 461, 41 So.2d 579.

The judgment in the court below is ordered affirmed.

Affirmed.