Lazarte v. City of Mountain Brook , 46 Ala. App. 653 ( 1970 )

ALMON, Judge.

Jorge A. Lazarte was convicted in the Recorders Court of the City of Mountain Brook for driving while intoxicated in violation of a city ordinance and fined $100.00. From that conviction he appealed to the Circuit Court of Jefferson County pursuant to Tit. 37, § 587, Code, 1940. See also § 464 of the same Title. He was tried de novo in the circuit court and again convicted and fined $50.00. From the judgment of conviction in the circuit court he brings this appeal.

Appellant contends that the circuit court lacked jurisdiction because the complaint was signed by the city prosecutor and not the “solicitor” as provided in Tit. 15, § 363, Code, 1940, as follows:

“The trial in the circuit court shall be de novo, and without any indictment or presentment by the grand jury; but the solicitor shall make 'a brief statement of the cause of complaint signed by him. * * * ” (Emphasis added.)

Tit. 37, § 594, Code, 1940, provides that city recorders shall have original and concurrent jurisdiction wilh the county court or courts of like jurisdiction of all misdemeanors committed within the city or town, etc.

Therefore, cases appealed from recorders courts can be either city cases or state cases depending upon whether the particular offense is denounced by state law or municipal ordinance. Here, the prosecution in the recorders court was based on a violation of a municipal ordinance and consequently would be considered a city case on appeal. All the cases cited to us by the appellant as requiring the signature of the circuit solicitor (or district attorney) were so called state cases and would not be controlling in this instance.

The present case is one for the violation of a municipal ordinance and not a state misdemeanor. The complaint avers the substance of the ordinance, the adoption by the city, and its violation by the appellant. The ordinance so referred to was introduced in evidence without objection along with a companion ordinance which prescribed the penalty.

This distinction between state cases and city cases is recognized in Tit. 37, § 588, Code, 1940, as follows:

“ * * * and the court may also on motion of the solicitor or his assistant where the prosecution is in the name of the state, or on motion of the attorney prosecuting for the city or town where the prosecution is in the name of the city or town, or in the absence of such motion ex mero motu, dismiss such appeal. * * * ”

Moreover, the next section, 588(1), dealing with fees, refers to “municipal solicitor”.

Although we have found no case directly in point, we perceive the rule to be simply that a complaint in a circuit court on appeal from a recorders court should be signed by the circuit solicitor (or district attorney) when it is a state case, and by the municipal or city attorney when it is a city case. See Williamson v. City of Greenville, 39 Ala.App. 237, 97 So.2d 600; Pearson v. City of Huntsville, 42 Ala.App. 458, 168 So.2d 24.

What we have said concerning the above jurisdictional question, strictly speaking, may be considered mere dictum since there was no assignment of error. Nevertheless, the question must be resolved, because, had we held the failure of the district attorney to sign the complaint fatal to the prosecution in the circuit court, no assignment of error would have been necessary. This is not unlike the age-old dilemma of which comes first, the chicken or the egg.

Appellant .filed a motion seeking a new trial on the ground that the verdict rendered by the jury was a quotient or gambling verdict. The denial of this motion was properly assigned as error. A number of slips of paper were introduced in evidence at the hearing by defense counsel. Pie testified that he found the slips of paper in the jury room immediately following the rendition of the verdict.

To establish a quotient verdict, the appellant must submit evidence from which a fair inference may be drawn that the jury through an antecedent agreement bound themselves to abide by the results of the quotient process. If this is shown, the trial judge should set the verdict aside unless the State offers other evidence to refute it. Ordinarily, this is done by calling jurors- to support the validity of their verdict. George’s Restaurant v. Dukes, 216 Ala. 239, 113 So. 53; Mobile & O. R. Co. v. Watson, 221 Ala. 585, 130 So. 199; Sanders v. State, 243 Ala. 691, 11 So.2d 740.

From the testimony it appears that some slips of paper had sums of dollars in figures marked on them; others had “guilty” written on them; and still others had “yes” written on them. It is not clear from the transcript of the testimony hpw many slips of paper there were in all or how many of each kind there was. It is not clear whether there were slips of paper indicating any process of addition or division. The slips of paper in evidence were not sent to this court and cannot now be obtained, apparently having been lost. In view of the record before us, we must conclude that the trial judge was correct in denying appellant’s motion for a new trial because the evidence offered did not raise a fair inference of a quotient verdict.

For the foregoing reasons, we conclude that the judgment appealed from should be

Affirmed.