Opinion
6 Div. 724.
October 10, 1940.
Ralph E. Parker, of Birmingham, for petitioner.
If an accused procures a verdict or judgment of guilt to be set aside, the conviction so set aside is not former jeopardy. Cobia v. State, 16 Ala. 781; Turner v. State, 40 Ala. 21; Waller v. State, 40 Ala. 325; Jeffries v. State, 40 Ala. 381; Kendall v. State, 65 Ala. 492; Morrisette v. State, 77 Ala. 71; State v. Phil, 1 Stewart, Ala., 31. An appeal from a judgment of a Recorder's Court to the Circuit Court completely vacates the judgment of the Recorder's Court. Thompson v. Birmingham, 217 Ala. 491, 117 So. 406. Former jeopardy does not exist from the nol. pros. of a criminal charge at a time when jeopardy is not in being. Walker v. State, 61 Ala. 30; O'Brien v. State, 91 Ala. 25, 8 So. 560. If a judgment of conviction is vacated by even a reviewing court and after remand, the case is nol. prossed in the trial court, the conviction so vacated is not former jeopardy to a later and separate prosecution. Patterson v. State, 70 Ind. 341; Fain v. Commonwealth, 109 Ky. 545, 59 S.W. 1091; Brill v. State, 1 Tex. App. 152; State v. Rust, 31 Kan. 509, 3 P. 428; State v. Williams, 43 Wn. 505, 86 P. 847. If judgment of conviction in inferior court is appealed to circuit court and case is there nol. prossed, said conviction does not constitute former jeopardy, as it was vacated by appeal. Biggers v. State, 20 Ala. App. 632, 104 So. 681; Treadaway v. State, 18 Ala. App. 409, 92 So. 529. Pendency of a prosecution for an offense is not ground for abating a later and separate prosecution for the same offense. White v. State, 86 Ala. 69, 5 So. 674; Bell v. State, 115 Ala. 25, 22 So. 526; Tolbert v. State, 28 Ala. App. 209, 181 So. 800.
Morel Montgomery, of Birmingham, opposed.
Jeopardy as claimed by defendant was that in the Recorder's Court, not in the Circuit Court, and there may be no double jeopardy in the Recorder's Court any more than in the Circuit Court. Ala. Const. § 59. The test of the sufficiency of a plea of former jeopardy is whether the facts averred in the second complaint if found to be true would have warranted a conviction upon the first charge. A municipality cannot twice prosecute an alleged violator of one of its ordinances in a Recorder's Court. Gordon v. State, 71 Ala. 315; 16 C.J. 265; 1 Wharton, Cr.Law, 11th Ed., 508; Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436.
A case pending on appeal by defendant to the circuit court from the recorder's court is triable de novo. Section 1937, Code. When so, as long as it remains in the circuit court, the judgment of the recorder's court is ineffective as such, and as jeopardy it stands as though it had never been rendered. 15 Am.Jur. 53, section 378; 43 Corpus Juris 486, note 33. However, the circuit court may dismiss the appeal and thereby reinstate the judgment of the recorder's court. Section 1938, Code, as amended by Act of September 14, 1935. General Acts 1935, page 1107. This effected a change in the law as declared in Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406. But unless the appeal is dismissed, the circuit court will dispose of it on the same principles as one begun there, provided the recorder's court had jurisdiction. City of Selma v. Stewart, 67 Ala. 338.
The judgment of the recorder's court and proceedings there finding him guilty are then but a step toward the jurisdiction of the circuit court, and they are effective for no other purpose here involved if the circuit court makes final disposition of it without reinstating the judgment of the recorder's court. See Louisville Nashville R. R. Co. v. Lancaster, 121 Ala. 471, 473, 25 So. 733.
The question of jeopardy is then controlled by what occurs in the circuit court. If it is nol prossed in that court before jeopardy arises there, defendant is not protected from another trial on the same cause subsequently begun in a court of competent jurisdiction. O'Brien v. State, 91 Ala. 25, 8 So. 560; Walker v. State, 61 Ala. 30; Whitaker v. State, 21 Ala. App. 114, 105 So. 433.
Under circumstances similar to those here involved, the Court of Appeals held that there was no double jeopardy in the cases of Biggers v. State, 20 Ala. App. 632, 104 So. 681, and Treadaway v. State, 18 Ala. App. 409, 92 So. 529, as we understand those cases.
In the case of Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436, cited by the defendant, jeopardy had occurred in case No. 1, since witnesses for the District of Columbia prosecuting the case had been called and examined before a nol pros was entered and a new prosecution begun. That was the controlling fact on which the opinion rested.
It is our opinion that there is no double jeopardy shown under the circumstances here set out, since the nol pros was entered in the circuit court before jeopardy there occurred. The opinion of the Court of Appeals in this cause to a different conclusion does not meet our approval.
Certiorari awarded, judgment of the Court of Appeals reversed and cause remanded to it.
All the Justices concur.