128 Ala. 41 | Ala. | 1900
It is not denied that- the same act may -constitute an offense both against the State and municipal corporation, and "the State and municipality
In the case before us, George Young, the party assaulted, made an affidavit before the sergeant óf police of the city of Montgomery, charging that defendant, within the limits of the city, county and State, and within the police jurisdiction of the city of Montgomery, did assault and beat him by cutting him; and on this affidavit, on the day of its date, — the 13th July, 1900, —the sergeant of police issued a warrant to any lawful officer of the State, reciting the contents of the affidavit, and commanding him to arrest the accused 'and bring 'him before the recorder. The warrant was executed, and defendant was duly 'tried by the recorder, and found guilty of an assault and battery 'as charged in the complaint, and a fine of $25 was assessed against him, in default of the payment of 'which, defendant was sentenced to hard labor for the city of Montgomery for 28 days. He performed the hard labor 'sentence. On the 28th July, 1900, at the July term of the city court of Montgomery, defendant was indicted for an assault with intent to murder said George Young, and was convicted thereof and sentenced by said court to two years in the penitentiary. The defendant pleaded in bar of the prosecution in the city court, ithe fact of his trial and conviction before the recoider for having committed an assault and battery, alleging in his plea, that the offense with which he was then charged in said court “is based upon and is the same transaction and assault as alleged in the first.prosecution” (before the recorder), and prayed to be discharged. A demurrer was sustained to this-plea, and that is the error complained of on appeal. '
There was no error in sustaining the demurrer to this plea. It failed to show, that the prosecution and judgment of conviction before the recorder was for the vio
We would not be understood as holding, that if the plea had shown that the proceeding before the recorder, was for the violation of a State statute, adjudicated by him as an ex officio justice of the peace, under the supposed authority of the charter of the city, that such a proceeding would be constitutionally authorized, under the charter, entitled as it is “To establish a new charter for the city of Montgomery” (Acts, 1892-3, p. 368), and the act amendatory thereof. (Acts, 1894-5, p. 628.) We do not deem it important to pass upon that question at this time, and do not do so. See Bell v. The State, 115 Ala. 87.
Let the judgment of the court below be affirmed.
