Brooke v. State

SIMPSON, J.

The defendant (appellant) was indicted and convicted of an assault and battery. It is contended by the appellant that the court erred in sustaining the demurrers, by the state, to the pleas of former jeopardy. The insistence by the state is that under the casé of Englehardt v. State, 88 Ala. 100, 7 South. 154 , said pleas were not good, because they did not show that *82 the charter of the town of Luverne specially provided that a conviction or acquittal before the mayor should be a bar to a prosecution before a state court for the same offense.

It is true that in that case, the clause of the act amending the charter of the City of Montgomery, which is cited, has that expression; yet an inspection of the act shows that the original charter of said city provided merely that the “mayor and aldermen shall be ex officio vested with and may exercise in said city all the powers and authority that belong to justice of the peace, in criminal matters, by the laws of the state.” Acts 1869-70, p. 363, 10. This merely refers to the powers and authority of the mayor with regard to offenses against the city. The amendment, which the court refers to, and under which the plea would have been good if the offense had been committed subsequent to the enactment, provides that the recorder “shall have original and concurrent jurisdiction of all misdemeanors, committed within said city, * * * against the laws of the state,” and then goes on with the sentence quoted by the court. Acts 1888-89, p. 526. The latter clause is merely a statement of a result which would have necessarily followed the enactment of the first clause, without it; for the only requisite of former jeopardy, so far as this point is concerned, is that the defendant shall have been acquitted or convicted before a court of competent jurisdiction for the same offense. “A single crime cannot be split up or subdivided into two or more indictable offenses; and hence if the state, through its authorized officers, elects to prosecute a crime in one of its phases or aspects, it cannot afterwards prosecute for the same criminal act under color of another name.” — Moore v. State, 71 Ala. 307 ; Powell v. State, 89 Ala. 172 , 8 South. 109 . When the law confers upon' municipal officers jurisdic *83 tion to try offenses against tbe state, it makes sncb officers its officers in tbe trial of sncb cases, and it is not analogous to tbe trial for a mere violation of a city ordinance. In a later case tbis court beld a similar plea good, not by virtue of tbe clause quoted in tbe Engle-harcU Case, but upon tbe general principle that tbe recorder’s court bad jurisdiction to try tbe same offense against tbe state. — Jackson v. State, 136 Ala. 96 , 33 South. 888 .

Tbe pleas demurred to averred tbe jurisdiction of tbe mayor’s court of Luverne to try offenses against tbe state, and that tbe defendant was tried for an offense against tbe state, that it was tbe identical offense for wbicb be is indicted in tbis case, etc., and tbe act gives to tbe mayor of Luverne, in addition to jurisdiction to try for violations of tbe by-laws and ordinances of said town, also “jurisdiction, concurrent with tbe county and circuit courts, of all misdemeanors known to tbe laws of tbe state, committed witbin tbe corporate limits of said town.” Acts 1890-91, p. 408 10. “Where two courts have concurrent jurisdiction of an offense, an acquittal or convictio.ii in one will bar a prosecution in tbe other.” IT A. & E. Ency. Law (2d Ed.) p. 588. Consequently, in so far as tbis point is concerned, the pleas were sufficient.

It is next insisted by tbe state that tbe judgment of acquittal in the mayor’s court was void because tbe arrest was not based on any affidavit. It is a sufficient answer to tbis that tbe charter of tbe town of Luverne authorizes the marshal “to arrest offenders for offenses committed in bis presence, or for offenses for wbicb be has probable cause to believe were committed witbin tbe corporate limits of said town, and keep them in custody until trial.” Acts 1890-91, p. 409, 11. So it cannot be affirmed that said judgment, was void, and tbe court err *84 ed in sustaining demurrers to tbe pleas of former jeopardy.

The question of misnomer was submitted to the jury, and their verdict on that issue was in favor of the state; but the defendant claims that demurrer to the replication to the plea of misnomer, and his motion to strike the same, before issue joined, should have been sustained. No objection seems to have been offered to the plea of misnomer having been interposed after a plea in bar had been filed and disposed of. — Miller v. State, 54 Ala. 155 ; Wells v. State, 88 Ala. 239 , 7 South. 272 . At any rate the demurrer to the replication seems to have been properly overruled.' — Gilmore v. State, 126 Ala. 20 , 28 South. 596 , 600 (column 2).

The objections to the testimony of W. W. Pearson were properly overruled (Gilmore v. State, supra), and on the same authority the general charge for the state was properly given on the plea of misnomer.

The court erred in sustaining objections to the questions in regard to the article in the Luverne Journal. If, upon another trial, it shall be shown that said article was published so recently, or had.only come to the knowledge of the defendant so recently, as to be “at or near the time of the assault,” the defendant will be entitled to have the evidence go before the.jury under section 4345 of the Criminal Code of 1896. — Keiser v. Smith, 71 Ala. 481 , Am. Rep. 312, and cases cited.

The objections to the questions to the defendant as to his physical condition at the time he made the attack were properly sustained. His physical condition was not material to any issue in this case. A weak man has no more right to commit an assault and battery than a strong one.

The objections to the questions as to why the defendant carried the stick, and as to whether he knew that *85 McLendon was in tbe post office when he ivent there, were properly sustained. The question of premeditation was not in this case, nor was there any attempt to prove preparation for the attack. The stick was simply a walking cane, which any one has a right to carry. In addition, it may be stated that the questions called for the nncommnnicated intentions of the witness. — Lewis v. State, 96 Ala. 6 , 11 South. 259 , 38 Am. St. Rep. 75 .

The charges requested by the defendant, to the effect that the court was without jurisdiction of the offense because it was committed in the post office, were properly refused. It is not necessary to enter into the question of the state’s right to try offenses committed in places ceded to the United States, or as to the force and effect of our statute. Civ. Code 1896, 628. There is no proof tending to show that the building used as a post office was on ground that had been ceded to the United States; but, on the contrary, it is shown that the post office was rented by the postmaster.

The charge marked 4 is elliptical, and was properly refused.

The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.