Pike v. City of Birmingham
53 So. 2d 394
Ala. Ct. App.
1951
Check Treatment

*1 him to for him be better told statement, him if worse or for make a hope not; out held did punish- reward, hope lessening of anyone him; towards

ment things any of those hearing presence or do make statement?” get liim to these reply both of

'The affirmative that what all doubt

questions removes volun- occasions said both

accused conformity to the rule. tarily

Written task of It was not the refused. the matters be concerned jury instruction. in the tendered out

set responded to each

We review. presented our affirmed. ordered judgment below is BIRMINGHAM. v. CITY OF

PIKE 6 Div. 55. Appeals Alabama. Hewitt, Gibson & 27, 1951. March appellant. Rehearing Denied *2 Bi prosecution by the same sov

had been the that where an ereign, now settled it of both offense a violation constitutes law, city prosecu ordinance and a State sovereigns tion one of offended will the prosecution by other. the Bill bar 41 ingsley v. 34 431; Bell v. So. certiorari denied Ala. So. 1. 'plea to the of The demurrer convict therefore autrefois sustained. Brown, Birmingham, ap- H. Chas. On direct examination Mr. a. pellee. at testified that witness stated, time of his arrest had stopped get:

that “if Fiorella hadn’t Sam whiskey they a bottle of would been checking gone through got: and before - there.” During the of the cross examination wit- ness the record shows the Goldstein follow- ing:

“Q. you just, will ask if know Mr.. I just your answer tell us Mr.. Goldstein — you go- it; if back over didn’t' Goldstein— testify down Court, Recorders June, case, 27th in this to this: “Question: say?’ Mr. Pike ‘What Hunt “Answer: ‘He said if hadn’t and, stopped, they if hadn’t for a. they away.’ drink would “Now, you testified to that —I will ask. you you if testified to that down there- HARWOOD, Judge. ? on that occasion name right That is was first convicted in Appellant the there? Birming- of the Court Recorder’s way “A. That is right, that is the —be- violating Ordinance ham of got it down wrong. pertaining to lotteries. “Q. got He it wrong did-he? down A» appeal to the Circuit Jef- Yes. he County from this conviction ferson Well, “Q. you say other words didn’t guilty. found again that? say way “A. didn’t he has got I circuit filed court In the convict, it written down should autrefo-is there. He have- plea of got heretofore been con- name where he that he had Fiorella’s Hunt. County Court of victed right, Gibson: All Jefferson that is all. “Mr. vagrancy, on a Misdemeanors “Re-Direct Examination. contrary the laws of the State Ala- Now, “Q. (By Mr. Brown:) vouching bama. accuracy for the of this Mr-. plea, and to this demurred just you I will Gibson testified ask has to, was sustained. demurrer question read asked, you entirely Pretermitting considera statement —if wasn’t there, there, down while plea be valid didn’t state ‘Mr» as to whether tion Appellant’s assignments stated, remaining minutes had been ten Fiorella if we constitutionality of gone, they of error they later would have up just through checking Birmingham. Ordinance *3 These contentions have consider received there?”’ months, able from in attention us recent ob- defendant’s question, The above over appel adversely and have been decided to jection exception in was answered lant’s fur contentions. We will write affirmative. . ther of Birm to them. Fiorella v. interpret portion of the As we 761,1 Ala.App., ingham, 48 So.2d certiorari record, merely questioned witness was 515, 768; City denied 254 Ala. 48 So.2d testimony portion another of his in Birmingham Reed, Ala.App. v. part A of Gold- the Recorder’s Court. 44 So.2d 607. hearing having in that stein’s by The evidence submitted the- by injected into evidence the defend was in abundant its tendencies to sustain ant, permit error to to it was not charged. the offense The sub portions other of Goldstein’s inquire into mitted no evidence in the trial below. proceeding. that Wilson in v. Ala.App. 563; cer So.2d 568. denied 243 Ala. tiorari Rehearing. On bolstering did not amount to This also application reheáring appellant’s testimony. ex- The entire of Goldstein’s requests we counsel write to court’s cerpt of the record shows that it was biit ruling sustaining city’s objection by explanation Goldstein of an an question propounded to Detective Goldstein transcript pre- his contradiction page full as to whether a advertisement in testimony after Goldstein admitted vious paper daily pertaining the third annual transcript proceedings of the former puzzle the Disabled American contest by as stated defendant’s counsel. were Veteran’s Service Foundation constituted a lottery. Furthermore, cannot see the de- injured probably principle' could have been sustaining

fendant law rights in event. ruling his substantial court’s this instance was dis- Ray, City, had testified supra, para- Detective cussed in Fiorella v. appellant had at the of his .arrest graphs (10, report time 11) in the if the officers “had been ten stated that this decision. We do not think that a gone.” we would minutes later further discussion is here indicated. opinion general It seems to have been the Application denied^ that he missed arrest Hunt, delay.

ten minute Whether

“they,” “Fiorella” for a drink immaterial, testimony as delay concerning being

statements un-

disputed and uncontradicted. 52 So.2d objection the defendant’s Of Over v. STATE. GOODMAN qualified expert as ficer who an Div. 326. permitted writings to state that certain arrest, the time of Appeals seized at Alabama. customarily usually of a kind 1951. operation lottery. used in the of a No ruling. Brooks

error resulted in this v.

115; Birmingham, 35 White v.

Ala.App. 611, 51 So.2d 271.

1 35