Opinion
6 Div. 106.
March 13, 1951.
Appeal from the Circuit Court, Jefferson County, George Lewis Bailes, J.
The following charge was refused to defendant: "4. The Court charges the jury that if you are satisfied from the evidence, and the evidence alone, that the defendant is guilty as charged, beyond a reasonable doubt and to a moral certainty, the punishment to be awarded by you may be a fine of any amount from one cent to one hundred dollars, and, in addition thereto, you may, in your discretion, sentence him to hard labor for the city for any number of days from one day [to] one hundred eighty days, but it is not mandatory that you give him any hard labor sentence, as you are authorized to assess a money fine only."
Gibson Hewitt, Birmingham, for appellant.
Defendant's charge 4 should have been given. It was error to overrule objection to argument of appellees' counsel. The court committed error in stating to the jury that defendant had been convicted in recorder's court. Dupuy v. Wright, 7 Ala. App. 238, 60 So. 997; Harsh v. Heflin, 76 Ala. 499.
Chas H. Brown, Birmingham, for appellee.
Statement of the trial court that the case comes by way of appeal from recorder's court was proper. Stinson v. City of Birmingham, 31 Ala. App. 577, 20 So.2d. 113. Charge 4 is covered by the oral charge, but is also misleading and invasive of the jury's province.
In the court below the accused was convicted of a violation of Sec. 600 of the General City Code of the City of Birmingham, Alabama of 1944. This ordinance is generally termed the "lottery law."
One insistence is that the above ordinance is unconstitutional. This question has been settled adversely to appellant's contention in Fiorella v. City of Birmingham, Ala.App., 48 So.2d 761, certiorari denied 254 Ala. 515, 48 So.2d 768; City of Birmingham v. Reed, ante, p. 31, 44 So.2d 607.
Ante, p. 384.
After counsel had announced ready to proceed, the trial judge stated to the jury: "Gentlemen of the panel, this case comes to you by way of appeal from the Recorder's Court into the Circuit Court."
This was an authorized explanation by the court of the process by which the case reached the circuit court. Fiorella v. City of Birmingham, supra.
Written charge numbered 4 was refused to the appellant without error. Windham v. City of Andalusia, 218 Ala. 428, 118 So. 739.
In his argument to the jury the prosecuting attorney stated: "Gentlemen of the jury, there is no way to tell how much is involved in this thing."
No doubt this statement had reference to the nature, character, and seriousness of the offense charged in the indictment. Clearly, therefore, it was within the right and province of the attorney to remind the jury of this fact.
The judgment of the court below is ordered affirmed.
Affirmed.