City of Birmingham v. Reed , 35 Ala. App. 31 ( 1949 )

In her application for rehearing filed in this cause appellant has questioned the constitutionality of the proceedings below.

She asserts that she was deprived of due process of law in that her appeal to the circuit court from her conviction in the Recorder's Court was not set down for trial in accordance with notice served on her.

This contention is without merit. In appellant's "Motion to Set Aside Order," filed in the court below it is stated that "Said cause came on for trial on November 30, 1948, at which time the defendant appeared in court to stand trial." Said cause at that time was continued to be reset with another case then pending in said court, said case being numbered 13456.

The "Order of Forfeiture and Dismissal of Appeal" entered by circuit court on January 18, 1949, states positively that; "It further appearing to the court that this cause was regularly set for trial on this day, and the defendant failing to appear," etc.

It therefore affirmatively appears from the record that the appellant's case was properly in court on January 18, 1949.

A plaintiff has the duty to follow his case in all its aspects until finally disposed of, and no duty rests on the court or its officers or the adverse party to advise plaintiff of the setting of the case for trial. Wetzel v. Birmingham Electric Co., 250 Ala. 267, 33 So.2d 882.

Appellant asserts in her proposition II in her brief in support of this application for rehearing that the relief prayed for by the petition for writ of certiorari cannot be granted for that it affirmatively appears that no accusation in due form was filed in the cause.

Without unduly burdening this extended opinion we think it suffices as an answer to this proposition to observe that the jurisdictional recitals in the appeal bond, made by appellant in perfecting her appeal to the circuit court, gave the circuit court jurisdiction of this cause. Chaney v. City of Birmingham,32 Ala. App. 4, 21 So.2d 268.

Appellant further asserts in this application that the relief prayed for in the petition for writ of certiorari cannot be granted for the reason that the ordinance under which appellant was convicted is invalid and unconstitutional for want of a standard. We are permitted to take judicial notice of ordinances of cities having a population of 200,000 or more. General Acts 1943, page 183.

The ordinance of the City of Birmingham under which appellant was convicted is as follows:

"Sec. 600. Possession of Lottery Tickets, Policy Slips, etc. "Any person who possesses any ticket, writing, paper, slip, document, memorandum, list, article, matter or thing of any nature of kind whatsoever, which is customarily or usually used in the operation of a lottery, policy game, or game of chance of any sort or kind, or which is of a kind which is customarily used in the operation of a lottery, policy game, or other game of chance of any sort or kind, shall, upon conviction be punished in the manner and within the limits specified by section 4. To constitute the offense created by this section it shall not be necessary that the ticket, writing, paper, slip, document, memorandum, list, article, matter or thing be actually used, or actually be in use or is yet actually to be used in the operation of a lottery, policy game or other game of chance. It shall not be a defense to the charge of possessing the ticket, writing paper, slip, document, memorandum, list, article, matter or thing that it or any of them so possessed have not actually been used or were not then being used, or were not intended to be used in the operation or in connection with the operation of a lottery, policy game or other game of chance. The possession forbidden by this section shall not apply to a possession had by a police, officer, sheriff, deputy sheriff or other peace officer, judge or attache of a court or an attorney, when such possession is connected with the prosecution or investigation of a violation of this section, but the burden of offering evidence that the accused's possession is under this exception shall rest upon the accused. Expert testimony shall be admissible to show that the ticket, writing, paper, slip, document, memorandum, list, article, matter or thing was customarily and usually used in the operation of a lottery, policy game, or other game of chance, and expert testimony shall also be admissible to show the contrary. (Ord. 258-F.)"

Appellant argues that under the above ordinance the possession of a simple tablet of paper constitutes an offense. We do not agree. The papers whose possession are forbidden under this ordinance are of a kind "customarily or usually used in the operation of a lottery, policy game," etc. Unless common sense and common knowledge be laid aside in interpretating the above quoted standardizing and limiting phrases, vagueness does not infect the ordinance.

The following observations by Chief Justice Taft, in United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 302,66 L.Ed. 604, are pertinent to the ordinance now under consideration, such ordinance being aimed at conduct and acts highly detrimental to society, and which by common knowledge are carried out in such varied and complicated channels, and by such devious routes, as to prevent a detailed description of such acts in ordinances and statutes aimed at their suppression: "While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did (252) not in terms include it (Reg. v. Sleep, 8 Cox, C.C. 472, Leigh C.C.C. 44, 30 L.J.Mag.Cas.N.S. 170, 7 Jur.N.S. 979, 4 L.T.N.S. 525, 9 Week.Rep. 709), there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota,218 U.S. 57, 69, 70, 30 S.Ct. 663, 666, 54 L.Ed. 930 [935, 936], in which it was held that in the prohibition or punishment of particular acts, the state may in the maintenance of a public policy provide 'that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.' Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se."

To like effect see also Smith v. State, 223 Ala. 346,136 So. 270; Allen v. State, 33 Ala. App. 70, 30 So.2d 479.

Other propositions are urged in appellant's brief in support of her application for rehearing. These propositions have we think been sufficiently covered in the original opinion in this cause. We therefore refrain from further discussion.

Application overruled.