Opinion
7 Div. 342.
April 10, 1928.
Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.
Adolphus Gooden was convicted of violating a prohibition ordinance of the Town of Childersburg, and he appeals. Reversed and remanded.
The complaint charges:
"That on or about, to wit, the 15th day of August, 1926, the said Adolphus Gooden violated Ordinance No. 190 of said town of Childersburg, which said ordinance is in words and figures as follows, to wit: * * * And that said violation of said ordinance consisted in this: That on said day the said Adolphus Gooden did, within the limits of said town of Childersburg, or within the police jurisdiction thereof, possess or have in his possession prohibited liquors or beverages as defined in said ordinance; and that on said day said ordinance was legally adopted by said town and was in full force and effect, and plaintiff demands that said Adolphus Gooden, the defendant, be punished as provided in said ordinance."
D. Hardy Riddle, of Talladega, for appellant.
The existence of a valid ordinance, properly promulgated, must be proven before a conviction can be had under it. Green v. City of Demopolis, 20 Ala. App. 115, 101 So. 529. No matter how strong the circumstances, if, under the evidence, some other person to the exclusion of the defendant could have committed the crime of which the defendant is charged, the defendant cannot be convicted. Hobdy v. State, 20 Ala. App. 44, 100 So. 571; Green v. City of Demopolis, supra.
Harrison Stringer, of Talladega, for appellee.
Where the evidence is heard by the court without a jury, the judgment will not be reversed unless plainly erroneous. Du Bose v. State, 126 Ala. 81, 28 So. 656. The ordinance was sufficiently authenticated. Code 1923, §§ 1944, 1999.
On the trial of this case in the circuit court, witness Lightsey was permitted to testify, without objection:
"Mr. Kirkpatrick sent after me, and I was in the warehouse there, and he told me there had been some liquor out there at the back of the church, and told me to go watch it, and the man that came and picked up that liquor to arrest him."
He also testified in like manner, "And I told Mr. Will McDougal to come down in about 15 minutes and go with me." And further, on cross-examination, he stated, "They just told me there was some liquor hid out there." And witness McDougal testified, without objection, "Mr. Lightsey said, 'Come on and go with me.' "
The above evidence was hearsay, pure and simple, and upon objection would not have been allowed. But, as stated, no objection was interposed and no ruling of the court invoked; we are, therefore, unable to give the appellant the benefit of that fact, as the jurisdiction of this court is appellate only, and we are not authorized to declare error unless a ruling at nisi prius had been invoked. In other words, a trial court cannot be put to error, in the absence of a ruling on the question at or during a trial of the case.
The demurrers to the complaint were properly overruled. The assignments of error relating to the introduction in evidence of the ordinance are not well taken. The specific objections urged in brief, to the effect that the ordinance book was not sufficiently authenticated and identified, were not stated as grounds of demurrer upon the trial. But if this were not true, the objections were not well founded and appear hypercritical. The ordinance offered in evidence shows upon its face that it was signed by the mayor and attested by the town clerk, and in connection therewith there was a certificate of the clerk to the effect that the ordinance had been duly published. Sections 1994, 1999, Code 1923.
This court has just considered the facts of this case sitting, en banc, and it is manifest that the principal insistence of error is the insufficiency of the evidence to sustain a conviction. We have reached that conclusion. We are of the opinion that the evidence for plaintiff did not measure up to the required rule, and as a consequence failed to overcome the presumption of innocence which attended the defendant upon this trial. The court is unanimous in the opinion that, under the evidence, the defendant should have been discharged. This point is properly raised and is sustained.
Reversed and remanded.