Herring v. State, 48 So. 476

Herring v. State

48 So. 476 | Ala. | 1908

Lead Opinion

SIMPSON, J.

The appellants were tried and convicted of the offense of selling spirtuous, vinous or malt liquors in violation of section 7357 of the Code of 1907.

The affidavit upon which the defendants were arrested ivas made before Hon. William Jackson, judge of the city court of Bessemer, and the warrant was issued by *33him. Motion was made to quash the affidavit and warrant on the ground that said judge of said city court was not authorized to administer said affidavit or to issue said warrant.

The statute (section 7359, Code of 1907) specifically provides that the affidavit shall he made before a justice of the peace, or judge of the county court, and the warrant issued by the same. The court erred in overruling said motion. Section 7519 refers only to affidavits and warrants under that chapter of the Code — which is the chapter in regard to proceedings to keep the peace.

The affidavit and warrant being void, the entire proceeding is without authority of law. The judgment of the court is reversed, and a judgment will be here rendered discharging the defendants.

Reversed and rendered.

Dowdell, Denson, and McClellan, JJ., concur.

Rehearing

On Rehearing.

SIMPSON, J.

The act creating the city court of Bessemer confers npon the court and upon the judge the same jurisdiction and powers as are conferred npon the criminal court of Jefferson connty and the judge thereof. The act creating the criminal court of Jefferson county (Loc. Laws 1886-87, p. 835) confers upon said court the “jurisdiction and powers, in the trial of criminal cases, and in proceedings connected with the administration of criminal law, ivhich now are or may be, by law, conferred on the several circuit courts of this state, together with such other jurisdiction and powers as may be conferred on said criminal court by the provisions of this act;” and the second section of said act, as amended by the act of December 7,1900 (Laws 1900-01, p. 214, § 1), provides that “said judges shall have *34and exercise jointly or separately all the jurisdiction and powers which are now, or may be hereafter lawfully exercised by the judges of the circuit court.” The sixth section confers jurisdiction of all offenses against the state concurrently with other courts; and section 12 provides that said court “shall have and exercise jurisdiction concurrently with other courts now having the same, of all prosecutions for misdemeanors committed in said county, which may be instituted or commenced in said court by complaint and warrant of arrest, and prosecutions for misdemeanors may be commenced by any person complaining under the form now prescribed by law for the commencement of prosecutions in the county courts,” etc., and “it shall be no objection to the complaint and warrant of arrest, when issued by justice of the peace, that they irregular,“ etc. The act also pro* vides for grand and petit juries in said court. — See Local Laws of Jefferson County (Complied by Weakley) p. 599 et seq.

We do not see in this act anything conferring on the judge of said court the authority of justices of the peace and of the county court judges, mentioned in section 7359 of the Code of 1907. — Vann & Waugh v. Adams, Thorne & Co., 71 Ala. 475. On the contrary, another court has been created in said county to exercise the jurisdiction and powers of justices of the peace.

Tyson, O. J., and Anderson, Denson, and McClellan, JJ., concur.