Hixon v. StateHixon v. State
- Reporters:
- , ,
- Before:
- Samford, Rice
State (Ala. Sup.) 39 So. 580. If the commission of the offense was instigated by the municipality, there could be no conviction in this case. 16 Corpus Juris, 90, note 60. This defense was available to the defendant under the plea of not guilty.
We know of no law, and the appellant has cited us to none, which would authorize a plea of recoupment in this character of action, which is criminal so far as the penalty to be imposed on conviction is concerned. The rulings on the pleas were free from prejudicial error.
There is no fatal variance between the complaint in the city court and the complaint filed in the circuit court on appeal. Hence the motion of defendant to strike the complaint was properly overruled.
The ordinance of the city of Roanoke was properly proven by the certificate and testimony of the city clerk, who was the custodian of the records of the city. Cooper v. Town of Valley Head, 212 Ala. 125, 101 So. 874.
No exceptions having been reserved to the court’s oral charge, error cannot now be based upon said charge. Sov. Camp, W. O. W., v. Gay, 217 Ala. 543, 117 So. 78.
The ordinance of the city under which this prosecution is brought, certified by the clerk and identified by her, was introduced in evidence. We see no error in admitting the ordinance as it appears in the transcript. The objection seems to be highly technical and without merit. Code 1923, 1999.
The ordinance here in question is valid according to the rule laid down in Casteel v. City of Decatur, 215 Ala. 4, 109 So. 571.
We find no prejudicial error in the record, and the judgment is affirmed.
Affirmed.
RICE, J., concurs in the conclusion.
Thos. E. Knight, Jr., Atty. Gen., for the State.
SAMFORD, J.
It is insisted that the defendant‘s motion for a new trial should have been granted on account of the character and weight of the evidence. We have read the record and the evidence adduced on the trial, and, while the character of evidence may not be as strong as in some cases, it was sufficient, if believed beyond a reasonable doubt, to warrant a verdict of guilt. Where this is the case, this court will not reverse the finding of the trial judge, who had the advantage of hearing and seeing the witnesses.
We find no prejudicial error in the record, and the judgment is affirmed.
Affirmed.
Affirmed.
PER CURIAM.
Reversed and remanded on authority of Hixon v. State, 134 So. 458.