Opinion
6 Div. 597.
June 26, 1934.
The constitutional guaranty, "That no person shall, for the same offense, be twice put in jeopardy of life or limb," has generally been construed to protect a person once tried in a court of competent jurisdiction, and there acquitted of any criminal offense, felony, or misdemeanor, from being again tried for the same offense under the law of the same sovereignty.
The genius and spirit of American institutions is said to lead to this liberal construction of this constitutional provision.
With this view the decisions of this court are in full accord. Jackson v. State, 136 Ala. 96, 33 So. 888; Hurst v. State, 86 Ala. 604, 6 So. 120, 11 Am. St. Rep. 79; Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; 16 C. J. p. 235, § 362.
In some states this is expressly held to include offenses against city ordinances. Noland v. People, 33 Colo. 322, 80 P. 887; City of Portland v. Erickson, 39 Or. 1, 62 P. 753; City of St. Paul v. Stamm, 106 Minn. 81, 118 N.W. 154.
In the view we take, it is not necessary to decide this question.
For present purposes, it may be conceded that, if a person is tried before the recorder for an offense under a city ordinance and acquitted, he may not be again arrested and tried for the same offense.
It may be further conceded that, where the right of appeal to the circuit court is a necessary procedure in order to protect the constitutional right of trial by jury, an acquittal on such appeal would be final. The citizen could not be required to surrender one constitutional right in order to preserve another.
But it is fully settled with us that the constitutional right of trial by jury does not extend to trials under city ordinances. Costello v. Feagin, Judge, 162 Ala. 191, 50 So. 134; Ex parte State ex rel. City of Birmingham, 164 Ala. 576, 51 So. 309.
The right of appeal to the circuit court and trial by jury on such appeal are therefore purely statutory.
In such case we think a different principle governs.
The party has already been duly convicted by a court of competent jurisdiction. The statute gives her a right of appeal and trial de novo to vacate such conviction. It is competent for the Legislature to prescribe the judicial proceedings following such appeal essential to her acquittal. The statute, in effect, declares that the verdict of acquittal on appeal is not final and unconditional, but subject to review on appeal by the city to the Court of Appeals.
If acquittal is obtained in a trial infected with reversible error, the statute declares it subject to reversal and a new trial.
Our conclusion is, therefore, the provision of section 30 of the act in question is not unconstitutional; that it was within legislative competence in granting an appeal to prescribe the proceedings on and following the appeal; the party seeking the benefits of the statute takes them under the terms of the statute.
ANDERSON, C. J., and THOMAS and FOSTER, JJ., concur.