Puryear v. State Ex Rel. Wade

BBOWN, P. J. [1] The appellee was convicted in the recorder’s court of the Ensley division, city of Birmingham, for a violation of a municipal ordinance, and demanded that he be granted an appeal without bond. On the refusal of the clerk of the recorder’s court to certify the appeal and proceedings to the criminal court and the refusal of the recorder to so order, he applied to the criminal court for a writ of mandamus to compel the certification of the appeal. On hearing in the criminal court, after overruling a demurrer to the petition interposed by appellants, a peremptory writ was awarded, and from the judgment awarding this writ, this appeal is prosecuted. Code 1907, § 1217, governs the right of appeal in such cases. It provides: “In any case involving the validity of an ordinance of the city, tried before the recorder, the council may take an appeal, without bond, to the circuit court or court of like jurisdiction; and, in any case the defendant may take an appeal to *113 such court by giving bond with good and sufficient sureties, payable to tbe city, to be approved by the recorder or officer trying the case, conditioned to be void if the defendant appears from term to term of said court, until discharged by law, to answer said charge, but unless such bond be given within five days from the date of the judgment no appeal shall be allowed from such judgment,” etc. The right of appeal from a conviction in a municipal court for a violation of an ordinance or by-law is the creature of statute (Town of Brighton v. Miles, 153 Ala. 673, 45 South. 160; State ex rel. Birmingham v. Fort, Judge, 12 Ala. App. 632, 67 South. 734); and it is conceded by counsel for appellee and well settled that the Constitution (Const. 1901, § 11) does not guarantee the right of trial by jury in trials for such violations. Costello v. Feagin, 162 Ala. 191, 50 South. 134; State ex rel. v. Fort, 164 Ala. 578, 51 South. 317. So the condition that a bond must be given in no way impinges the constitutional right of one so convicted. Brighton v. Miles, supra; Ex parte Reese, 112 Ala. 63, 21 South. 56. L2] But appellee contends that sections 1217 and 1451 of the Code must be construed together, and, when so construed, that a person so convicted, if he elects to remain in custody, may appeal without bond. 'Section 1451 has no application if appeals are otherwise provided for. This section was a part of our system of laws before the adoption of the Code of 1907, appearing as section 2969 of the Code of 1896, and its design was to provide for and regulate the right of appeal from convictions for municipal offenses in the absence of other provision for such appeals, and in no way conflicts with section 1217. The demurrer to the petition for mandamus should have been sustained, and the judgment of the criminal court will be reversed and a judgment here rendered, sustaining the demurrer, denying the writ and dismissing the petition. Reversed and rendered.