Pinson v. City of Birmingham

BRICKEN, P. J. This case originated in the recorder’s court of the city of Birmingham, wherein this appellant (a woman) was tried and convicted for the violation of a certain penal ordinance of said city. She appealed to the circuit court and was there tried by a jury upon a complaint filed by the city. The complaint contained one count only, and charged that the acts complained of were contrary to and in violation of section 1451 of the City Code of Birmingham. Section 1451 of the 1917 Code of the City of Birmingham, which section was in force and effect at the time of the alleged commission of the offense complained of in this prosecution, reads as follows: “Sec. 1451. If any officer, agent, manager, operator or user of any telephone or telegraph line operating in this City, or any other person shall use any improper, vulgar or profane language over such telephone or telegraph line, he shall on conviction thereof, be punished as provided in Section 1216 of the Code of Alabama.” Upon being arraigned in the circuit court, where the case was tried de novo, the defendant pleaded not guilty as charged, and this plea placed upon the prosecution the burden of proving the defendant’s guilt beyond a reasonable doubt as'charged in the complaint. From certain other averments in the complaint, as well as from ’the character of testimony adduced upon the trial, we are led to the conclusion that an inadvertence occurred in the drafting of the complaint and in the designation of the particular ordinance alleged to have been violated by the accused. In the record and in briefs of respective counsel it clearly appears that the ordinance alleged to have been violated was “section 1451 of the City Code of Birmingham.” This court, of course, must pass upon •the record as here submitted and cannot by intendment, or otherwise, alter, change, or correct it. Upon the trial of this ease there was no evidence tending to sustain the charge of a violation of section 1451 of the City Code of Birmingham ,by this appellant; she was therefore entitled to the affirmative charge requested in writing, the refusal of which was made the basis of assignment of error No. 1. This assignment must be sustained. Under this status other questions presented need not be discussed. Reversed and remanded.