519 So. 2d 587 | Ala. Crim. App. | 1986
Appellant, Stephen Rodgers Jones, was found guilty of driving while under the influence of alcohol, in violation of §
Officer Bobby Lavender of the City of Daphne Police Department testified that he arrested appellant for driving under the influence of alcohol, after discovering appellant's vehicle parked partly on "U.S. Highway 98." According to Lavender, the vehicle's engine was "running," and appellant was "sound asleep" behind the steering wheel. Lavender observed a can of beer between appellant's legs and detected a strong odor of alcohol about appellant's person. The officer was unable to awaken appellant, but managed to remove appellant from his vehicle, place him in the patrol car, and transport appellant to jail. Lavender was unable to conduct any tests for intoxication on appellant because at no time during the course of these events did appellant regain consciousness.
The defense declined to question Lavender. The State then rested its case. Appellant moved for a judgment of acquittal, arguing that the State failed to prove a prima facie case, which was denied by the trial court. The defense then rested without presenting any evidence.
Appellant's contention is supported by the authority ofCity of Birmingham v. Edwards,
Id. at 462, 93 So. at 235. The basis of the above quoted language is explained in 62 *589 C.J.S. Municipal Corporations § 379 (1949), as follows:"Having been tried in the municipal court by the recorder as for an offense against the municipal law, on appeal he could not be tried for an offense against the state law, although the acts or omissions charged against him did violate both the municipal and state law. The statute providing that on appeal to the circuit court the trial should be de novo, the defendant could not be tried in the circuit court for an offense of which he was not tried in the municipal court."
"When on appeal the case is triable de novo, it stands as though no judgment had ever been rendered in the lower court, the judgment and proceedings in the lower court being then but a step toward the jurisdiction of the appellate court, and effective for no other purpose if the appellate court makes final disposition of the case without reinstating the judgment of the trial court; and the appellate court, without a trial de novo, can neither affirm, reverse, nor amend the judgment of the lower court. While the trial in the appellate court is de novo, it is still the same case, involving a prosecution for the violation of a municipal ordinance, and accused cannot be tried for an offense against the state law, although the acts or omissions charged against him did violate both municipal and state law." (Emphasis added, footnotes omitted.)
Section
Based on the foregoing, the judgment below is due to be, and it is hereby, reversed, and the case is remanded.
REVERSED AND REMANDED.
All Judges concur.