Trimble v. Town of Haleyville

101 So. 523 | Ala. Ct. App. | 1924

A person charged with the violation of a municipal ordinance is entitled, in the municipal or mayor's court, "to be apprised of the nature and character of the proceeding instituted against him by a written complaint." But if, being so accused, a defendant proceeds to trial without demanding, in the municipal court, a written complaint, setting forth the accusation against him, he must be held to have waived the right, and cannot for the first time take advantage of such omission on appeal. McKinstry v. City of Tuscaloosa, 172 Ala. 344, 54 So. 629. The statement of the attorney for the city, filed in the circuit court, was defective, in that it did not set out the substance of the ordinance of the city and its adoption. Miles v. City of Montgomery, 17 Ala. App. 15,81 So. 351; Barnes v. City of Huntsville, 18 Ala. App. 646,94 So. 188. But the statement was not objected to on that ground, and stating, as it does, though only as a conclusion, a violation of an ordinance of the town of Haleyville, and no sufficient grounds of demurrer having been filed, the demurrer as filed was properly overruled. Dowling v. City of Troy, 1 Ala. App. 508,56 So. 116; Fealey v. City of Birmingham, 15 Ala. App. 367,73 So. 296.

The ordinance introduced in evidence is not the same as that passed on in the Kreulhaus Case, 164 Ala. 623, 51 So. 297, 26 L.R.A. (N.S.) 492. This ordinance is valid. City of Montgomery v. Davis, 15 Ala. App. 606, 74 So. 730; Ex parte Davis, 200 Ala. 436,76 So. 368.

We have given careful consideration to the third contention of appellant that:

"A person cannot be convicted upon the evidence of a detective who procures and entices the defendant to commit the crime, for the purpose of having him arrested and prosecuted."

The authorities cited are from jurisdictions of high standing, and would be applicable, if the facts of this case were analogous to those cases. Here the conviction does not rest or depend on the testimony of the detective. The charge is the possession of whisky, within the police jurisdiction of Haleyville. The proof of this possession was made by the sheriff and a police officer, neither of whom were shown to be connected with Smith, the detective. The whisky was found, by the officers, in the possession of defendant.

The foregoing are the only assignments of error insisted on in brief. The remainder are waived.

We find no error in the record, and the judgment is affirmed.

Affirmed.