JACKSON v. CITY OF BESSEMER

(99 South. 319) (6 Div. 320.) JACKSON v. CITY OF BESSEMER. (Court of Appeals of Alabama. Jan. 15, 1924. Rehearing Denied Eeb. 12, 1924.) 1. Municipal corporations <&wkey;>639(2) — Complaint charging violation of ordinance held sufficient. A complaint charging possession of whisky in violation of an ordinance set out therein, and averring that it was regularly and legally adopted by the city before such violation, and was a valid subsisting ordinance at the time of the offense and the trial, held, sufficient on demurrer. 2. Criminal law <&wkey;260(8) — Court may not grant defendant’s motion to dismiss appeal and discharge defendant, where no ground for discharge is shown. Defendant may dismiss his appeal to the circuit court from a judgment of conviction in the recorder’s court, but when a motion to discharge defendant is included in the motion to dismiss, and no ground for the former motion is shown, the court may not grant the motion to dismiss and discharge defendant. 3. Criminal law <&wkey;4090(ll) — Refusal of affirmative charge for defendant not reviewable in absence of bill of exceptions. Where there is no bill of exceptions, refusal to give the .affirmative charge for defendant is not.reviewable. Appeal from Circuit Court, Jefferson County, Bessemer Division; J. C. B. Gwin, Judge. Eugenia Jackson was convicted of violating an ordinance of the city of Bessemer, and appeals. Affirmed, Benton & Bentley, of Bessemer, for appellant. The averment that the ordinance in question was regularly and legally adopted is not sufficient to show authoritative ordination of the ordinance, Rosenberg v. Selma, 168 Ala. 195, 52 South. 742; Benjamin v. Montgomery, 16 Ala. App. 389, 78 South. 167; Bouyer v. Bessemer, 17 Ala. App. 665, 88 South. 192. Bumgardner & Wilson, of Bessemer, for appellee. The averments of the complaint are sufficient ; the authorities cited by appellant are not to the contrary. [MAJORITY — FOSTER, J.] FOSTER, J. The defendant was convicted in the recorder’s court of the city of Bessemer for violation of the prohibition law, and appealed to the circuit court (Bessemer division). In the circuit court, the plaintiff, the city of Bessemer, by its attorney filed a complaint charging that the defendant did have in her possession whisky in violation of section 2 of Ordinance 385, of the city of Bessemer, setting out section 2 in the complaint, and averring that it was regularly and legally adopted by. said city before thfe alleged violation by the defendant, and was a valid subsistíng ordinance at the time of the alleged commission of the offense and at the time of the trial. The demurrer to the complaint was properly overruled. On the trial in the circuit court the' defendant moved to dismiss the appeal and discharge the defendant. A defendant may dismiss an appeal taken to the circuit court from judgment of the recorder’s court, but when there is included in the motion to dismiss the motion to discharge the .defendant, and no ground for the motion is shown, the court may not grant the motion to dismiss and discharge the defendant. There is no bill of exceptions and no question presented for review on the court’s refusal to give the affirmative charge for the defendant. The judgment of the circuit court is affirmed. Affirmed.