The Birmingham age-herald., 1909-10-15
FORT ORDERS CASE ON JURY DOCKET Prohibition VioIator Can De-
 mand Trial By Jury 200 CASES ARE AFFECTED Test Will Be Carried to the Supreme Court so That All Cases Can Be
 Disposed of In Regular
 Order.
200 CASES ARE AFFECTED


 case, Judge William E. Fort, senior judge of the Jefferson county criminal court handed down an order and judg- | ment yesterday sustaining a demand of | the defendant in the case for trial by | jury, remanding the cause to the jury docket of the criminal court, and there l by setting at rest temporarily at least. the mooted question of the right of trial by jury in the county courts of cases appealed from the recorders or police court of Birmingham.
 By Judge Forts decision something like 200 cases, where violations of the prohibition law are charged. are trans ferred from the non-jury 10 the jury docket of the criminal court and a hearing of these cases will be deferred until the supreme court of Alabama passes upon the decision.
 Wilson, the defendant in the case, was arrested at the St. Nicholas hotel | by special Deputies Carroll and Wag- 1 goner some time ago for the alleged 1 illicit sale of liquor. He was tried and convicted before Judge Feagin in the 1 police court. He took an appeal to the ! criminal court and applied for a trial by jury, which was temporarily denied him. Judge Forts order is a decision of this matter and Is considered per | haps the most important rendered in a 1 long time.
 Judge Fort states in his opinion that the case hinges entirely on whether or not the legislature. as matter Of fact, has provided for jury trials on appeal from the recorders court in the muni- cipal code of the state, or otherwise He l cites section 1451 of the code which, together with sections 1217-1S-1920 seem clearly to provide for jury trial where the same is demanded as in the present case"
 Judge Forts decision in the matter will be taken to the supreme court for final decision. It seems that there is no appeal from the decision under or dinary procedure, but the city attorney of Birmingham will seek from the su- perior court of the state a writ of mandamus to set aside the opinion. The petition for writ of mandamus will be
 
 court as a preferred case and will prob ably be among the @st Jefferson coun- ty cases which will be heard by the | supreme court during the latter part of l next month.
 In the meantime the 200 cases in volved will be transferred to the jury | docket of the criminal court, but will not be set for trial until the supreme court passes upon the matter In case ! the supreme court sustains Judge Fort l it will require probably months work of both divisions of the criminal court to try all of the cases by jury. Judge Forts decision in the case fol- | lows in full
 | City of Birmingham vs. J. T. Wilson, Defendant, in the Criminal Court of | Jefferson County, Alabama Appealed
 from the Recorders Court of Birming | ham.
 | Order and judgment sustaining demand | for jury trial and remanding said cause l to the jury docket of the criminal court for trial in due course of law. Defendant in this cause was tried by | the recorders court of the city of Birm- 1 ingham on charge of violating sections | 962 963 and 964 of the city code of Birm- | ingham. He was convicted in said re- | corder's court and took an appeal to this court, filing his appeal bond within five | days after the judgment of conviction in said recorders court. There was a de- mand for trial by jury written on the l appeal bond and signed by the defendant 1 at the time of filing said bond in the recorders court The case appears on the non-jury docket of this court. When | said case was called for trial defendant | presented a motion in writing for the | transfer of said cause to the jury docket | of this court, insisting upon his original demand for jury trial made on the ap- l peal bond
 | The case of Costello against Feaein, 50 So. 134, decided that under the act ere ating the inferior court of Birmingham, defendant charged with violating a city ordinance is not entitled to a jury trial | on demand made in the police court: and said act also provides that no jury trial 1 shall be had on appeal to this court from the judgment of said inferior court | of Birmingham. Said case also decided l that defendant charged with violating a municipal ordinance had no constitu- tional right to jury trial under section | Ii of our constitution, which provides that "the right of trial by jury shall re- main inviolate." It was also decided in | this case that the legislature had the | right by local act to provide for trial l without jury. All the decisions of our supreme court, which I have been able | to find on this subject, hold likewise.
 See Boring vs. the State, r Ala. 5l0
 Tims vs. State 26 Ala. 165.
 Thomas vs. Bibb, A Ala. 721
 Mayor vs. Allaire, fl Ala 400.
 r Bray vs the State. 40 Ala. 172.
 Miller vs. City of Birmingham, 15l Ala. | Each of the above cases specifically ] holds that no constitutional right of de- | fendant is violated by legislative denial of a trial by jury in cases charging a violation of municipal ordinance, as dis l tinguished from a charge of violating the | misdemeanor laws of the state In no case has it been held that the legislature may not provide for a jury trial in cases of violation of municipal ordinance The city of Birmingham has been reg l ularly organized under the provisions of | the municipal code of the state This | virtually abolishes the inferior court of | Birmingham and suspends the operation | of the act creating said court; and the
 city of Birmingham has established a re- corder's court, with the powers provided
 for such courts under the municipal code k The present case, therefore. hinges not on construction of the act creating the
 inferior court of Birmingham or the
 power of the legislature to provide for
 trials by the judge without jury; but
 depends entirely whether or not the
 legislature. as matter of fact. has pro
 vided for jury trials on appeal from the | recorders court in the municipal code of the state or otherwise.