118 So. 265 | Ala. | 1928
Lead Opinion
2. Had there been a "discontinuance" — a gap or chasm in the proceedings after the suit or prosecution was pending — the voluntary act of defendant, appearing without due objection and pleading "not guilty" in the circuit court, was a waiver of any right of discontinuance, if such existed. It is required of one to make due insistence and "take advantage of his rights," at the proper time, and a failure so to insist "will be considered a waiver." Ex parte Hall,
3. Under the provisions of the Constitution, the Legislature has the right to pass laws dispensing with a grand jury in case of misdemeanors. Const. § 8; Gaines v. State,
"To so enact was fully within the power of the Legislature. The present Constitution, different in this respect from the Constitutions prior to that of 1865 (Thomas v. State,
The proviso to section 8 of the Constitution of 1901 is the same, in respects here material, as that in section 9, art. 1, Const. of 1875, construed in the Witt Case. See, also, State v. Bush,
Since the Legislature could enact, as was done for Madison county, and sustained in Gaines v. State, supra, to the end that the clerk of the circuit court could issue an affidavit for misdemeanor returnable to and for trial in the circuit court, so may a justice of the peace, as was done in Pike county, be authorized to issue warrant for a misdemeanor, returnable to the law court for trial, and, after the abolition of that court, cases pending therein were made transferable to the circuit court. The jurisdiction of the circuit court was, therefore, properly sustained by the Court of Appeals, within the express provisions of special and general enactments of the Legislature, without doing violence to organic law. There was a provision of law for the initiation of the prosecution by affidavit, returnable to the law court of Pike county in Acts of 1888-89, p. 631, and after the abolition of such court for the transfer of pending causes to the circuit court. Gen. Acts 1915, p. 279.
In preparing the foregoing, it was thought unnecessary to do more than cite the cases of Witt v. State and Gaines v. State, supra, from this court, and those of Roseberry v. State and State v. Bush, supra, from the Court of Appeals, collecting and discussing the Constitution, statutes, and our cases. However, there is a conflict in our decisions, requiring a careful consideration of our cases that have a bearing on the question presented for decision. The cases cited by petitioner are:
Clark v. State,
"There is no constitutional restriction upon the legislative power to dispense with indictments in cases of misdemeanors."
And the statutes authorizing the trial of misdemeanors without a jury are adverted to in Baader v. State,
In Jones v. State,
The case of Lewis v. State,
In the case of Smith v. State,
"By the Constitution it is provided that in cases of misdemeanor the Legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings before justices of the peace or such other inferior courts as may be by law established. * * *
"As was pointed out in Clark v. State,
"In this case the trial was had upon the original affidavit, importing thereby, as we apprehend, the adoption by the solicitor of the affidavit as the state's complaint."
Petitioner's counsel ask: How could the circuit court of Pike county proceed to trial of petitioner without violating his constitutional right, safeguarded under section 7 of the Constitution? The answer is that he was accused, arrested, and detained in a case or for an offense against the criminal laws of the state, established and promulgated prior to the offense, and legally applied according to the form which the law has prescribed, by the affidavit and warrant returnable to the Pike county law court, that of the abolition of said court and the due transfer to the circuit court of all pending causes.
This observation of section 7 of the Constitution makes necessary its consideration with sections 8, 139, 143, of the Constitution. In section 143 is the provision that the circuit court shall have original jurisdiction in all matters, civil and criminal, within the state not otherwise excepted in this Constitution. The like provision is contained in section 6676, Code, to the effect that the circuit court exercises "original jurisdiction of all felonies and misdemeanors." Phillips v. Morrow,
And in the exercise of this right the Legislature, as affecting Madison county, vested the "power of a judicial nature" to issue warrants in misdemeanors, etc., in the clerk of the circuit court. Since that act (Local Acts 1919, p. 17) misdemeanants have been tried and convicted in that county by the circuit court, upon warrants issued by its clerk, and without indictment by the grand jury. Gaines v. State,
In Chilton county, by Local Acts 1923, p. 64, the county court was abolished, provision made for the transfer of all pending causes to the circuit court, and that act further provided that misdemeanor cases may originate by affidavit before the clerk of the circuit court, returnable to the circuit court. This statute was sustained in Roseberry v. State,
Under the act of 1915 (Local Acts 1915, p. 134) the judge of the inferior court of Bessemer was authorized to issue affidavits in certain misdemeanors, returnable to the circuit court of that division of said court, and there try on that authority and process without indictment. The same has been approved by the appellate court. Reese v. State,
The provisions of section 4646, Code of 1923, codified from the prohibition law of 1909 (Acts 1909, p. 92, § 32), and Acts 1915, pp. 8, 32, for prosecutions by affidavit, as well as by indictment, in prohibition cases, are:
"All prosecutions for a violation of any provision of this chapter, or of any other law, for the suppression of the evils of intemperance, may be begun by affidavit as well as by indictment and when begun by affidavit, the person charged shall not have the right to demand that a grand jury prefer an indictment for the alleged offense, except where such offense is a felony, but the prosecution may continue no matter in what court or before what judge the trial shall be had upon the affidavit upon which it was originally begun."
It is upon such a statute (Fuller Bill, Gen. and Local Acts, Sp. Sess. 1909, p. 63, § 32) that in Alford v. State ex rel. Attorney Gen.,
As we have stated, the instant petitioner was proceeded against by affidavit, for the offense of violating the prohibition law, issued by the justice of the peace, and returnable before that officer, and there was also a formal complaint in that court to like effect; thereafter a warrant of arrest was issued thereon by the clerk of the circuit court, after abolition of the former court and transfer by law of this and all other pending causes to the circuit court, as a pending cause within the abolition statute. The defendant was given the right to a trial by the petit jury in the circuit court, returning the verdict of guilty against him, on which judgment was rendered and the appeal is prosecuted therefrom. If he had been tried in the Pike county law court, and appealed to the circuit court, he could have secured only a trial de novo; and this he had by a petit jury finding him guilty. State ex rel. Sellers v. Murphy,
The provisions of section 8 of the Constitution of 1901 come to us, in respects here material, from article 1, § 9, of the Constitution of 1875. The latter provision of organic law was defined as to the use of the word "misdemeanor" in Witt v. State (1900)
The expressions in Lee v. State (1904)
Following such construction of section 8 of the Constitution as to misdemeanors, many statutes have been passed, as we have indicated, making process by affidavit, for misdemeanors, returnable and triable in the circuit court without the intervention of a grand jury. It is immaterial whether the issuing officer is the judge of an inferior court, a justice of the peace, or a clerk of the circuit court; the principle announced in Witt's Case has application. It is sufficient that the official is a person duly invested with the power by the Legislature under section 139 of the Constitution, as "such (a) person as may be by law invested with powers of a judicial nature," and that the defendant had his right to trial by a petit jury. See Gaines v. State,
The writ of certiorari is denied, and the application for rehearing is overruled.
ANDERSON, C. J., and SAYRE, GARDNER, and BOULDIN, JJ., concur.
Dissenting Opinion
The petitioner was proceeded against criminally in the circuit court of Pike county for an indictable offense, without the indictment of a grand jury, on an affidavit made before a justice of the peace, by one R. E. McClure, a private citizen, alleging "on oath that he has probable cause for believing, and does believe, that in Pike county, within 12 months before the making of this affidavit, Willis Collins did sell, or offer for sale, keep or have in his possession for sale, barter, exchange, give away, furnish at a public place or elsewhere, or otherwise dispose of vinous, spirituous, or malt liquors contrary to law, against the peace and dignity of the state of Alabama," and was convicted, and from the judgment of conviction he appealed to the Court of Appeals, where this judgment was affirmed.
The circuit court proceeded in the exercise of its original, and not in the exercise of appellate, jurisdiction, and the sole question presented here is: Can this proceeding receive the stamp and approval as being "due process of law," within the meaning of the Constitution, which secures the individual against the arbitrary action of the state and its legally constituted authorities? Constitution 1901, §§ *254
6, 7, 8, 13; Spooney v. State (Ala. Sup.)
"When the people of this state, through their representatives, met in convention to form this state government, they reserved to themselves and their descendants and successors certain rights, liberties, privileges, and immunities, which they did not surrender or cede to the government to be created by the convention. They also exacted guaranties of the government so formed to protect each person in the state, and secure to him the enjoyment and exercise of these rights, liberties, privileges, and immunities, so reserved against encroachment or destruction thereof by other persons, whether majorities or minorities of the whole, or officers of any department of the government itself. Some, but not all, of these rights, liberties, privileges, and immunities, are enumerated in the Bill of Rights, which comprises the first 36 sections of our Constitution. That all this is true is obvious from a reading of the last two sections of the Bill of Rights, as follows:
" 'Sec. 35. That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.
" 'Sec. 36. That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this declaration of rights is excepted out of the general powers of government, and shall forever remain inviolate.' "
Section 7 of the Bill of Rights declares:
"That no person shall be accused or arrested, or detained, except in cases ascertained by law, and according to the form which the same has prescribed," etc.
And section 8:
"That no person shall, for any indictable offense, be proceeded against criminally, by information, except in cases arising in the militia and volunteer forces when in actual service, or when assembled under arms as a military organization, or, by leave of the court, for misfeasance, misdemeanor, extortion, and oppression in office, otherwise than is provided in the Constitution: Provided, that in cases of misdemeanor, the Legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings before justices of the peace or such other inferior courts asmay be by law established."
This is a clear limitation on the power of the Legislature to prescribe procedure, as well as on the power of the circuit courts to proceed. The majority opinion justifies the proceeding on the authority of Witt v. State,
It is only necessary to observe that the circuit court is a creature of the Constitution, and is a nisi prius court of general jurisdiction of the highest dignity, to demonstrate the proviso in this section of the Constitution authorizing the Legislature to dispense with a grand jury and authorize a procedure by information for misdemeanors "before justices of the peace or such other inferior courts as may be by law established," has no application to the circuit court. It is equally as clear that the clause in the first part of this section — "for misfeasance, misdemeanor, extortion, and oppression in office" — does not relax the restrictions in cases of misdemeanors generally, but only as to misdemeanors inoffice, and has reference to impeachment proceedings.
This clearly demonstrates that the opinion in Witt v. State,
In Larkin v. Simmons,
"By section 8 of the same instrument [the Constitution] the original jurisdiction of [the circuit] court in criminal cases is limited to cases in which indictments are preferred."
See, also, Clark v. State,
An indictment is more than a mere accusation based on probable cause. It is an accusation based upon legal testimony of a direct and positive character, and the concurring judgment of at least 12 grand jurors duly impaneled as a part of the court and acting under oath to "diligently inquire, and true presentment make, of all indictable offenses given you in charge, as well as those brought to your knowledge, committed or triable within the county," and to "present no person from envy, hatred or malice, nor leave any one unpresented from fear, affection, reward, or the hope thereof," that on the evidence presented to the grand jury the accused is guilty of the offense charged in the indictment. Code 1923, § 8666; People v. Tinder Smith,
The clear and manifest purpose of section 8 of the Constitution was to guarantee the individual citizen that he shall not be brought to trial and proceeded against criminally in the circuit court of the state, where the trial on the facts is final, until his case is investigated by a grand jury and an indictment returned against him, and to prohibit such proceeding on the mere oath or affirmation of an individual that he has probable cause to believe and does believe that the accused is guilty. *255
The integrity of the Constitution, in a large degree, is committed by that instrument into the keeping of this the highest court of the state, and arguments based on mere expediency, or the fact that it has been misinterpreted or disregarded by this court, or by the Legislature, is no reason why this court should perpetuate its error and continue to disregard it. There are but two decisions of this court pertinent to the question in hand, both in point, and they are in direct conflict.
It is my opinion that Larkin v. Simmons, supra, correctly interprets and declares the effect of section 8 of the Constitution, and that case should be followed, and that Witt v. State, supra, should be overruled, and for this reason I respectfully dissent.
SOMERVILLE, J., concurs in the foregoing dissent.