Shackleford v. State

Jun 10, 1920

2 Div. 711.

Versions:

THOMAS, J.

The petition of W. Z. Shackleford was directed to the judge of the cir. *363 cult court, praying for a writ of cеrtiorari to quash and hold for naught a certain proceeding in the county court, charging trespass after warning, which was dismissed, and in which the petitioner ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was taxed with the costs of the prosecution. The pеtition for writ of certiorari being denied, appeal was taken to this court under' section 4866 of the Code. City of Birmingham v. Southern Bell T. & T. Co., 203 Ala. 251, 82 South. 519.

It was and is made to appear by the record that said petitioner was а resident of the county in which the initial proceeding for trespass after warning was instituted, and the owner аnd in possession of a tract of land therein; that defendant Charles La Rouke was charged to have gone on said land and refused to go therefrom when warned by the said owner to do so; that thereafter (March 13, 1919) petitioner went before a justice of the peace in said county and made affidavit for the arrest of said La Rouke, charging him with trespass after warning; that a warrant issued for his arrest returnable to the county court at its next term and was duly executed; that at the April term of said court petitionеr was present with his witnesses to prove said charge; that “the defendant continued the case, and that at the May, June, and July terms, 1919, he (petitioner) was also present with his witnesses to prove the charge, but thаt the defendant continued the case.” It was further averred that neither petitioner nor his witnesses were summoned for the August term of said court, did not know of the case being called for that term or of being taxed with the costs of the prosecution until informed by letter from the county solicitor; that petitioner can prove said charges against defendant, and that he did not institute the prosecution out of malice, nor was the prosecution frivolous.

[1, 2] The theory of this petition is that the judgment entered by the county court without a hearing, in the absence of petitioner •and the defendant, was void as to his taxation with the costs, for the reason that the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍proceeding* did not show on its face that the prosecution was malicious or frivolous. In volume 3 of the Code, relative to county courts and proceedings therein, are found sections 6722 and 6723, as follows:

“6722. If the prosecution appears to the court to be maliсious or frivolous, the court shall tax the prosecutor with the costs, in which case the judgment entry may he аs follows:

“The State v. O. D. Prosecution for (here describe the offense by name, or some familiar description), instituted by A. B. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍In this cáse, the prosecution appearing to be malicious (or frivolous), the costs аre taxed against A. B., the prosecutor.

“6723. It shall be no objection to the proceedings of the сounty court, either in that court or elsewhere, that they are imperfect or inaccurate; аnd when its proceedings are reviewed on appeal or certiorari, all amendable еrrors shall be regarded as amended, so as to present only the substantial inquiry of the guilt or innocencе of the accused.”

Section 6722 is penal, and must be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍strictly construed. Davis v. Curtis, 192 Ala. 64, 67, 68 South. 419; Tillman v. Wood, 58 Ala. 578. The statutory condition preсedent to the taxation of c'osts against a prosecutor was that the prosecution appeared to the court to be frivolous or malicious.

It is insisted by the Attorney General that in the use of thе word “may” in the statute (section 6722), in a case where the prosecution appears to the сourt to be malicious or frivolous, it showed that the statute was not mandatory, and that the form of judgment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍given fоr such case need not be followed. Petitioner’s counsel insist that the word may, as it appears in thе statute, is mandatory, that the "form of judgment given by the statute must be followed, and state the substance of the stаtute as the finding of the court; that is, state that the prosecution appears to the court to be frivolоus, or is made to appear, or found to have been malicious in its issue on the part of the prоsecutor, as a necessary predicate to taxing the prosecutor with the costs. The lattеr is the true interpretation of the statute. Board of Revenue, Shelby Co., v. Farson, Son & Co., 197 Ala. 375, 382, 72 South. 613, L. R. A. 1918B, 881; Ex parte Simonton, 9 Port. 390, 33 Am. Dec. 320; Tarver v. Com’rs’ Court of Tallapoosa, 17 Ala. 527; Ex parte Banks, 28 Ala. 28; Ex parte Chase, 43 Ala. 303, 311.

When the case against La Rouke was dismissed in the county court, the issue under section 6722 for decision was whether or not the prosecution instituted by petitioner against him appeared “to the court to be malicious or frivolous.” The judgment rendered by the court did not decide this issue, as shown by its recitals. Without such finding and recital in the judgment by the court (if it amounted to a judgment of dismissal, which we do not hold) the taxing of prosecutor with the cost was giving to the statute a broader scope than that authorized by its strict construction. Thus the judgment was subject to be avoided as sought by petitioner’s application by certiorari directed to the judge- of the сircuit court. The writ was erroneously denied, and is hereby awarded, and what purports to be a judgment is quashed.

ANDERSON, C. J., and McOLELLAN and ' SOMERVILLE, JJ., concur.