Opinion
4 Div. 827.
December 15, 1931.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
A. A. Couric was convicted of violating an ordinance of the City of Eufaula against public drunkenness, and he appeals.
Affirmed.
The complaint charges that defendant "was guilty of the offense of Public Drunkenness, contrary to the law and Ordinances of Eufaula."
The verdict of the jury was: "We, the jury find the defendant guilty and assess a fine of $1.00." And the judgment: "It is therefore considered by the court, and it is the judgment of the court that the defendant is guilty as charged and it is ordered and adjudged by the court that the defendant be and he is hereby assessed a fine of $1.00 and costs of this suit."
Guy W. Winn, of Clayton, for appellant.
Under a charge of public drunkenness defendant could not be found guilty of disorderly conduct. It is not within the power of a municipality to enact an ordinance inconsistent with the state law. Code 1923, § 1992. The state law makes public drunkenness a misdemeanor, and fixes the minimum penalty at $5; the city ordinance fixes the minimum penalty at less than $5 for the same offense. Code 1923, §§ 3883, 1946. Neither the verdict nor judgment shows the offense, and both are void.
Chauncey Sparks, of Eufaula, for appellee.
The caption to the judgment is no part of the record. The verdict and judgment are referred to the pleadings for their validity. The complaint shows the offense, and describes it accurately. It is not necessary for the judgment or verdict to name the offense. Cornelison v. State, 18 Ala. App. 639, 94 So. 202; Hardeman v. State, 202 Ala. 694, 81 So. 656; Casey v. State, 19 Ala. App. 317, 97 So. 165; Battle v. State, 21 Ala. App. 584, 110 So. 323. The ordinance is not set out; there being no bill of exceptions. The appellate court presumes the trial court to have acted on sufficient evidence. The fact that the ordinance fixes a lower minimum penalty than the state law does not constitute a conflict. In absence of a bill of exceptions, the appellate court cannot consider the defendant's refused charges or the motion for a new trial. Sanderson v. State, 16 Ala. App. 471, 79 So. 145; Code 1923, § 6088; Swinea v. State, 22 Ala. App. 524, 117 So. 506; Martin v. State, 216 Ala. 160, 113 So. 602. There is no error in the record, and the judgment should be affirmed. Pappas v. Eufaula, 23 Ala. App. 485, 127 So. 263; Pappas v. State, 23 Ala. App. 663, 128 So. 921.
This appeal is upon the record proper, there being no bill of exceptions.
By assignment of errors, appellant insists: (1) "The verdict of the jury is invalid"; (2) "Judgment based on said verdict is invalid."
Neither of the foregoing insistences can be sustained. The well-considered brief filed here in behalf of appellee is a complete and thorough answer to appellant's contentions.
The words "Disorderly conduct," appearing in the caption of the judgment, were no part of the judgment, and in no manner essential to the validity thereof. If considered at all, these words could be deemed as mere surplusage and of no other import so far as the judgment complained of is concerned. The verdict of the jury and judgment of the court have reference to the pleadings for validity, rendering unnecessary for the judgment or the verdict to specifically name the offense. The complaint sets out the offense charged and describes it accurately, and, as stated, it was not necessary for the judgment or the verdict to name the offense. Cornelison v. State, 18 Ala. App. 639, 94 So. 202; Hardeman v. State, 202 Ala. 694, 81 So. 656; Casey v. State, 19 Ala. App. 317, 97 So. 165; Battle v. State, 21 Ala. App. 584, 110 So. 323.
There is no merit in the second and remaining point of decision presented, to the effect that the ordinance of the city here involved is inconsistent to, and in conflict with, the laws of the state. Section 1946 of the Code 1923, cited and relied upon by appellant, has reference to trials by recorders for offenses against the state laws, and not for trials as for violations of the city ordinances. Section 1945, Code 1923. See, also, section 1936, Code 1923, which provides: "No fine shall exceed one hundred dollars," etc. There is no statutory or other provision of law which requires a town or city to fix by ordinance the same minimum fine as that fixed by the statutes for violation of a state law. Counsel for appellee correctly insist "there is no relation between the statute and the ordinance, and no limitation upon the municipality by virtue of the statute making public drunkenness an offense against the State, but only such limitation as the municipal code prescribes, that is, not exceeding a maximum fine of $100.00."
There is no judgment on defendant's demurrers to the complaint. Consequently there is nothing before the court to decide relative to the defendant's demurrers to the complaint.
There is no bill of exceptions; therefore this court cannot consider the appellant's refused charges (Sanderson v. State, 16 Ala. App. 471, 79 So. 145), and for like reasons this court cannot consider the lower court's ruling on motion for new trial. Section 6088, Code of 1923. Swinea v. State, 22 Ala. App. 524, 117 So. 506; Martin v. State, 216 Ala. 160, 113 So. 602.
There is no error in the record, and the judgment appealed from is affirmed.
Affirmed.