53 So. 2d 783 | La. | 1951
These two cases were consolidated for argument and submission on appeal. Identical issues are involved in both.
The defendant in each case was charged in an affidavit filed in the City-Court of the City of Shreveport with having operated a motor vehicle in a careless and reckless manner on the streets of the City of Shreveport in that he did operate said vehicle while under the influence of intoxicating liquor and drugs, in violation of Ordinance 207 of 1923, as amended by Ordinance 26 of 1924, of that City.
The defendant Charlie Moore was charged with having committed the offense on December- 22, 1950 and defendant J. D. O’Daniel on February 17, 1951. 'Moore was tried in the City Court of the City of Shreveport on January 10, 1951 and O’Daniel, in the same Court on February 26, 1951. Each was found guilty and sentenced' to pay a fine of $100. and to' serve thirty days imprisonment and in default of payment of the fine to ^ork it oút on the streets and alleys of the City of Shreveport or other public works, at the rate of $1 per day for each day of labor performed. Also each defendant’s driver’s license was revoked.
Jl] In each case the defendant took an appeal to the First Judicial District Gouijt, ...Caddo .Parish, where in conformity with' the provisions of R.S. 1950, LS A — R.S. 13:2443, which regulates appeals from the City Court of the City of Shreveport in cases such as these, the cases were tried de novo. The conviction in each case was affirmed in the District Court, that of the defendant Moore on March 28, 1951 and that of O’Daniel on April 25, 1951. Motions for new trial and in arrest of judgment were filed and denied in each case whereupon each defendant moved for and was granted an appeal to this Court upon furnishing bond.
The City of Shreveport, relying on the decision of this Court in the case of State v. Delia, 206 La. 574, 19 So.2d 257, has filed a motion to dismiss the appeal in each case, on the ground that the defendants, having appealed to the First Judicial District Court, Caddo Parish, from their respective convictions in the City Court, are without right to prosecute their appeals here from the District Court’s judgments which affirmed the judgments of the City Court of the City of Shreveport.
Whilst it does not so appear in the record in either case, it is now admitted by counsel on both sides that the legality and constitutionality of the fine and penalty imposed in each case was contested in the City Court and the issue was again raised in and presented to the District Court.
Whilst this Court does have appellate jurisdiction under Section 10 of Article VII of the Constitution of 1921, “in all cases * * * where the legality, or
Counsel for defendants contend, however, that in cases of this character there is the right to two appeals because under Sec. 36 of Art. VII of the Constitution, persons sentenced to pay a fine or to imprisonment by mayors are entitled to an appeal to the District Court, where the case is tried de novo on all issues involved, including the legality of the fine, and on this latter issue, if the judgment of the District Court sustains its legality then the further right of appeal to the Supreme Court exists under Sec. 10 of Art. VII of the Constitution.
There is nothing in either of those provisions of the Constitution however to warrant the assumption that two appeals can be taken on the one issue of the legality of the fine, and the settled jurisprudence, as counsel themselves concede, is to the contrary. If, as happened in this case, the legality of the fine is pleaded in the Mayor’s or Municipal Court and decided adversely to the defendant, he has the right, under Sec. 10 of Art. VII and under the fixed jurisprudence, to appeal directly to the Supreme Court to have that issue decided' by a final judgment. If he does not avail himself of that right of appeal, but chooses rather to appeal to the District Court under Sec. 36 of Art. VII and have his case tried de novo, he loses his right to appeal to the Supreme Court on the question of the legality of the fine. Should the decision go against him in the District Court to which 'he appealed, his only remedy would be to invoke the supervisory jurisdiction of the Supreme Court, and that -would also be his only remedy had he not contested the legality of the fine in the Municipal Court but raised that issue for the first time on appeal in the District Court. State v. Bonner, 193 La. 402, 190 So. 626; Town of Many v. Franklin, 115 La. 638, 39 So. 740.
Counsel for defendants make, the further postulation that if, under the present jurisprudence, in order to have the Supreme Court pass upon the legality of the fines imposed in the Municipal Court it is
The motion to dismiss the appeal in each of these two cases will have to be sustained and the appeal in each dismissed. A separate decree will be entered in each case, the one which follows to be the decree in that of City of Shreveport v. -Moore, bearing Number 40,322 of the docket of this Court.
For the reasons assigned, the appeal is dismissed.