Marcus v. City of Birmingham

CATES, Judge.

Marcus, a bellboy in the Redmont Hotel, was convicted as a pimp. The complaint, in more roundabout fashion, charged that he did incite, aid or abet a female to prostitute herself.

Assignment of error 1 complains of the circuit court’s overruling the demurrer to the city’s complaint. It is argued that the complaint fails to charge an offense. We distinguish this case from Philyaw v. City of Birmingham, 36 Ala. App. 112, 54 So.2d 619.

We consider the words used are specific enough to meet the test of particularity used in Mitchell v. State, Ala.App., 130 So.2d 198, and followed in DuBose v. City, of Montgomery-, ante, p: 233, 127 So.2d 845.

Assignment of error 2 goes to the refusal of the affirmative charge. To point to this claim,- Marcus cites us to Reynolds v. State, 30 Ala.App. 256, 4 So.2d 201. The argument is that the evidence was insufficient.

Appeals in municipal ordinance offenses are civil in nature at least so far as requiring assignments of error and briefs. Parks v. City of Montgomery, 38 Ala.App. 681, 92 So.2d 683. Hence, to argue insufficiency, Supreme Court Rule 9(b), requiring a condensation of the testimony of each witness must be met. This recital has been omitted.

Assignment of error 5 relates to the refusal of requested charge 6:

“The Court charges the jury that there ' is no evidence of prostitution practiced by Edith Byers on this occasion complained of.”

Conviction of inciting, aiding or abetting another does not require that the other shall have completed the offense encouraged. , Shuttlesworth v. City of Birmingham, ante, p. 319, 134 So.2d 213.

Assignment of error 6 rests on the refusal of charge 7:

“The. Court charges the jury that there is no evidence of any violation of any state law, of the State of Alabama.”

This charge presumably seeks to single out that aspect of § 824 of the General City Code of Birmingham of 1944 which makes inciting, etc., to commit a misdemeanor also an offense against the city.

The assignment is not argued to the required degree. As dictum it can be pointed out that charge 7 gives the jury no instruction as to how to employ the contended for legal statement. Also, the charge is elliptical under § 824, supra, because- it fails to distinguish between felony and misdemeanor.

Assignment of error 7 is directed to the refusal of charge 8. This charge is based on the theory that to convict Marcus there must have been an act of prostitution or an intent to commit one by the arresting officer.

A single lewd act of sexual intercourse is ordinarily not sufficient to brand a woman as a harlot. Wilson v. State, 17 Ala.App. 307, 84 So. 783. As applied to a male client of a female prostitute, we consider the expression “that he committed an act of prostitution” to be misleading.

Assignments 8 and 9 are not argued in brief other than by statements ihat error is manifest under authorities cited. Assignment 10 is incomplete.

A civil brief on appeal should furnish the court not only all the raw material but the argument in it should give reasoned conclusions which the court could (if not otherwise swayed by the opponent) use as an aid in framing its opinion. Cf. Whitt v. Forbes, 258 Ala. 580, 64 So.2d 77; Bertolla & Sons v. Kaiser, 267 Ala. 435, 103 So.2d 736.

Affirmed.