Ahlrichs v. City of Cullman

| Ala. | Nov 15, 1900

McCLELLAN, C. J.

Prosecution for violating a municipal ordinance. It is affirmed in the complaint that the affiant “Ims probable cause for believing and does believe” that a specific offense has been committed, etc., etc. The constitution authorizes arrests for offenses on a showing of probable cause. Our statutes authorize prosecutions to conviction of misdemeanors upon affidavits showing probable cause, and preliminary proceedings upon probable cause shown by deposition. The violation of a city ordinance is a quasi crime of the quality of a misdemeanor. It would be anomalous to require greater positiveness, in tlie affirmation of guilt of such quasi crime than is 'required in respect of crimes-, properly so called, of the same quality. Without basing our ruling upon the statute in regard to misdemeanors because it does not embrace violations of ordinances, we yet hold that in prosecutions for such violations, the constitution and the statutes supply an analogy and evidence a. policy which support the affirmation of the existence of probable cause to believe and belief as sufficient in err-plaints for the infraction of municipal ordinances.

This complaint before the mayor of Cullman may have been faulty in its too meagre description of the offense and, therefore, have been open to demurrer in the may- or's court; but it does charge an offense, and is quite sufficient to support the information filed by the town on appeal by the defendant in the circuit court. And the trial on appeal being de no do it would be of no consequence had a demurrer to the complaint been interposed in the mayor’s court and there improperly overruled.

The information or complaint filed in the circuit court, t-lie statement of its ease there made by the city, was not a departure from the cause tried by the mayor; and, as finally amended, that statement was not subject to any of the grounds of demurrer assigned to it, nor indeed to any objection.

We discover no error in the rulings of the court on objections to evidence.

As we construe the ordinance alleged to have been violated it is directed against the carrying on the business or occupation of a lawyer: It imposes a license tax on the occupation of engaging in and carrying on the practice of an attorney as a business in the city of Cull-man. It would not, we think, apply to a lawyer whose place of business as siuch is elsewhere than Cullman and who comes to Cullman now and again as he may have occasion to look after the interests of his clients in the trial of causes there or otherwise. The evidence on this trial was that the defendant was a lawyer and that he pursued the practice of law as a profession and had no other business or calling; and that as a lawyer he had participated in the trial of three certain cases, during the months of January and February, 1898, before S. H. Herrin, a justice of the peace, 'all which cases were tried in the city of Cullman. There was no evidence directly to the effect that his place of business was in Cullman, or that he resided there and held himself out as a practicing lawyer of that bar. To say the least, on this state of the evidence the affirmative charge should not have been given for the plaintiff. For the error committed in giving it, the judgment must be reversed. The cause is remanded.

Reversed and remanded.