City of Selma v. Shivers

43 So. 565 | Ala. | 1907

DOWDELL, J.

This was a prosecution commenced by affidavit and warrant for the violation of a municipal ordinance. The affidavit was made by one Henry Fair. The offense charged was one against the criminal laws of the state, as well as against the ordinance of the municipality, The case was tried in the mayor’s court, and the defendant was found guilty in said court, and was there sentenced to pay a fine of $20 and in default of the payment thereof to perform four days’ hard labor on the streets. From this conviction the defendant appealed to the'city court of Selma. The prosecution, being one for the violation of a municipal ordinance, was quasi criminal. In the city court, on motion of the defendant, the court quashed the affidavit upon which the prosecution was commenced. The bill of exceptions recites that the city of Selma excepted to this ruling of the court and thereupon took a nonsuit in said cause. There are two assignments of error on the record, the first being that “the court erred in overruling motion of appellant to transfer case from criminal to civil docket.” The second assignment is that “the court erred in sustaining the motion of the defendant in the court below to quash the affidavit in this cause.”

It appears from the bill of exceptions that a motion Avas made in the city court to transfer the case from the criminal to the civil docket, Avhicli motion Avas by the court overruled. If this were an important question, and we do not think it is, it is sufficient to say that as a matter of fact it is not shown, by the bill of exceptions or elsewhere in the record, that the case was not already stated on the ciAdl docket at the time the motion was made, and for that reason it Avas overruled. The fact that a motion Avas made to transfer a case from the crinr inal to the civil docket, of itself and alone, Avould not affirmatively sIioav, for the purpose of putting the court in error for overruling tlie motion, that the case was in fact on the criminal docket. As stated above, the proceeding was quasi criminal. It was commenced by affidavit and warrant, and was essentially in the nature of a prosecution. It was not in any sense an action for debt. The fact that the case was triable de novo in the city court on appeal from the mayor’s court did not change the character of the proceeding from that of a prosecution criminal in its form and nature to that of a civil action in’ debt.

The affidavit upon which the warrant was sued out was fatally defective, in that it did not affirm a probable cause for believing the defendant guilty of the offense charged. It is true that the affidavit states that affiant had “probable cause for believing, and does believe,” that the designated offense was committed; but it does not state that affiant has “probable cause for believing” that Paul Shivers, the defendant, is guilty of said offense. A “probable cause for believing” that Paul Shivers is guilty of the offense charged is essentially different from a statement charging Paul Shivers with the offense without affirming a probable cause for belief of his guilt. Again, after affirming in the affidavit a probable cause for believing, and affiant’s belief, that a designated offense has been committed, followed Avith the statement, “and charging Paul Shivers with the offense,” is not the equivalent of affirming the guilt of Paul Shivers of the offense, or of a probable cause for believing him guilty of the offense charged. — Or. Code 1896, § 400. The omission to affirm a probable cause for belief of the defendant’s guilt rendered the affidavit fatally defective and \roid.—Monroe v. State, 137 Ala. 88, 34 South. 382; Butler v. State, 130 Ala. 127, 30 South. 338; Miles v. State, 94 Ala. 106, 11 South. 403; Johnson v. State, 82 Ala. 29, 2 South. 466; Code 1896. § 4600.

We find no reversible error in the record, and the judgment aaíII be. affirmed.

Affirmed.

Tyson, C. J., and Simpson and Anderson, JJ., concur.