The prosecution in this case originated in the Juvenile and Domestic Relations Court of Jefferson County, and upon the trial in said court the defendant was adjudged guilty, and appealed to the circuit court, where he was tried upon an amended complaint which reads as follows:
"Personally appeared before me, Collins Urquhart, Solicitor of Juvenile and Domestic Relations Court of Jefferson County Officer M.S. Davis who being by me first duly sworn, deposes and says:
"First: That George Washington Smithson has within twelve months before the making of this affidavit, in said county, committed an act, or omitted the performance of a legal duty owed by the said George Washington Smithson to the hereinafter named child, which act, or omission of legal duty, caused, or tended to cause, or encouraged Barbara Harris, a female child under eighteen years of age, to become dependent, neglected or delinquent, as defined by law in said county, or that the said act or omission contributed thereto; in that the said George Washington Smithson, did within said twelve months, in said County did unlawfully placehis leg over the legs of said Barbara Harris, in an attempt todraw her closely to him."
On the trial in the circuit court no witnesses were examined. In lieu of taking testimony, the cause was submitted upon an agreement made and entered into and filed by counsel for respective parties and with consent of the trial court. Said agreement is as follows:
"It is hereby agreed that the two cases against George Washington Smithson be, and hereby are, submitted to Judge Robert J. Wheeler without taking any further testimony than that testimony which is hereby attached and made a part of this *Page 349 record, which was taken in the Juvenile and Domestic Relations Court for Jefferson County, with the exception that a statement of the defendant's testimony will be herein stipulated. The defendant withdraws his jury demand, and the case is herewith submitted on the original warrants of arrest, and defendant waives the filing of a Solicitor's complaint.
"The parties further stipulate that the defendant's evidence will be that the defendant was in the East Lake Theatre on the occasion complained of; that he did sit down behind two girls, one of whom later turned out to be Barbara Harris; that in making himself comfortable he did stretch out his feet and felt his feet touch the feet of the girl in front of him; that he thereupon begged the girl's pardon and stated that he had not intended to touch her; that he did not wrap his feet around her legs or attempt to feel of her feet or legs; that he did feel his feet come in contact with the little girl's feet or ankles and he thereupon immediately withdrew his feet and apologized; that he thought no more of the matter until the officers arrested him as he left the theatre; that he did get up and go to the Men's Rest Room but he didn't see Barbara anywhere in that vicinity; that when he went back to resume, during the picture, the seat he had left was taken and he took one several seats behind; that on Saturday November 30th being the Saturday preceding the date of the arrest of the defendant, the defendant states that he was not in the theatre in question, and did not enter the theatre in question on that date, and that he does not recall ever having seen any of the witnesses for the State; that on Saturday prior to the date of his arrest he was at home listening to a football game on the radio; that his son was then in the University of Alabama, and that he followed the Alabama team by radio.
"It is further stipulated that the Solicitor takes the position that his conduct amounted to contributing to the delinquency of a female, if the State's version of the evidence be believed. The defendant takes the position that if the State's version of what happened be considered to be true to a moral certainty and beyond a reasonable doubt, the defendant's conduct does not constitute contributing to the delinquency of a minor female."
As will be noted in the amended complaint, upon which the case was tried, the acts complained of as having been committed by the defendant were, "that he did unlawfully place his leg over the legs of Barbara Harris, in an attempt to draw her closely to him." It will be further noted that in said agreement (supra) the Solicitor, representing the State, contends and takes the position, that this (his) conduct amounted to contributing to the delinquency of a female child. The trial court accorded to this insistence, and it is our opinion in so doing, fell into error. Moore v. State, 33 Ala. App. 188, 31 So.2d 373. In order so to conclude, necessitates illogical and constrained stretch of imagination, or unwarranted conjecture, suspicion or surmise, none of which is countenanced, or allowable under the law.
Earnest counsel for appellant are correct in their strenuous insistence that the law in the case of Moore v. State, supra, is conclusive of this case, and further, that the lower court should have so held. Insisting in this connection that decisions of a court of last resort are to be regarded as law and should be followed by inferior courts, whatever the view of the latter may be, and the refusal of a lower court to follow an applicable rule of law pronounced by an appellate court is reversible error. The following enumerated authorities plainly support that proposition: Brewer v. State, 23 Ala. App. 116, 121 So. 689; Davis v. Clausen, 7 Ala. App. 381, 383, 62 So. 267; Sloss-Sheffield Steel Iron Co. v. Dean, 17 Ala. App. 253,84 So. 419; Arcless Contact Co. v. General Electric Co., 2 Cir., 87 F.2d 340; Jacoby v. Missouri Valley Drainage District, 349 Mo. 818, 163 S.W. 930; State ex rel. Walker v. Harrington, 3 Terry, Del., 14, 27 A.2d 67; 15 Corpus Juris 920, Sec. 308; 21 C.J.S., Courts, § 197.
Upon authority of the case of Moore v. State, supra, and decisions therein cited and quoted, the judgment of conviction rendered by the lower court in the case at bar, should be reversed and held for naught, *Page 350 and as the law requires, a judgment should be rendered discharging him from further custody in this proceeding.
Extended Opinion. The writer takes no issue with the majority opinion as to the propriety and necessity for the existence of juvenile courts, which proposition has been laboriously dealt with in said opinion, even to the extent of devoting several pages of the opinion to innumerable decisions, in foreign states, and setting out in extenso the facts in each of said cases upon which judgments of conviction were rendered. In every instance, it will be noted, by reference to said opinion, the recited facts in each of them discloses acts of perversion, lewdness, indecency, morbidness and abnormal, to the extent of being obnoxious in the extreme, and calculated to shock the moral sense by a disregard of chastity, or modesty, and of course, unlawfully.
The majority opinion, as will be noted, consists of nearly eight full pages, and in all of this lengthy document the only reference to the case at bar is as follows: "We entertain the view that the prosecution was not improvidently begun and that the evidence was sufficient and adequate to pose a factual issue."
Certainly my associates do not insist, or did not intend to imply, or hold, that the undisputed facts in the instant case, bear any analogy to either of the state of facts detailed in the cited cases.
If the accusation, and facts, in the case at bar were in any manner analogous, to the quoted abnormal facts, collated and recited in the majority opinion, there would have been no controversy or contention or difference of opinion relative to a conclusion here.
As stated, hereinabove, the complaint, as amended, and upon which this appellant was tried, charged that the accused, "placed his leg over the legs of said Barbara Harris,in an attempt to draw her closely to him." Hence the accused was called upon and required to answer this specific charge, and none other. Brown v. State, 20 Ala. App. 39, 100 So. 616.
The charge in the complaint was involved and crudely drawn; and, under the facts agreed upon in this case, the act complained of was impossible of consummation; as it is shown without dispute at the time of its alleged commission the defendant and the alleged injured party were seated in a picture show, he being seated immediately behind the girl, and she was seated in the row of seats in front of him. Under these conditions, and situation, it conclusively appears it would have been absolutely impossible for him to have drawn the girl towards him, the offense with which he was charged, for he could not draw the girl either under the seat or over it, which would have been necessary and the only manner in which it could have been done.
The testimony of the defendant agreed upon, was to the effect that "he did sit down behind two girls, one of whom later turned out to be Barbara Harris (the alleged injured party), that in making himself comfortable he did stretch out his feet and felt his feet touch the feet of the girl in front of him; that he thereupon begged the girl's pardon and stated that he had not intended to touch her." This testimony of the defendant, i.e. that he apologized, was not disputed or was it in conflict.
The record discloses that this prosecution was commenced, not by the alleged injured party, or by any aggrieved person, but by an assiduous officer of court, a policeman, who personally knew none of the facts as to the incident complained of, and hence his original affidavit was based upon hearsay only.
This being a criminal proceeding, the accused, as in all prosecutions, was certainly entitled to due process of law.
The principle that no man shall be deprived of his liberty or property except by "the law of the land" is said to be more ancient than written constitutions, "and breathes so palpably of exact justice that it needs no formulation in the organic law." It is but an expression of the fundamental principle that inspired civilized man to form a government, the ultimate purpose of which is to protect the individual *Page 351 in working out his destiny, and finds expression in our Constitution in these words: "That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either; * * * and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law," and "That all courts shall be open; and that every person, for any injury done him, in his * * * person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay." Constitution of Alabama 1901, Sections 6, 13.
The manifest purposes of the quoted constitutional provisions, where life, liberty, and property are affected, are to secure the citizen against the arbitrary action of those in authority, and to place him under the protection of the law. The expression "due process of law" has been held to be the equivalent of "the law of the land." State v. Bush, 12 Ala. App. 309, 311, 68 So. 492, 493.
In the case of Ware v. Dunn, 80 Cal.App.2d 936,183 P.2d 128, 133, it was said:
"From time immemorial the most conspicuous feature of history has been the struggle between liberty and authority. Today, as in ages past, we are not without tragic proof that the exacted power of some governments to ignore the inalienable right of the individual to liberty and to resort to lawless enforcement of the law is the handmaid of tyranny. No higher duty, no more solemn responsibility, rests upon the courts than to maintain the constitutional and statutory shields planned and inscribed to preserve liberty under law and protect each individual from oppression and wrong, from whatever source it may emanate."
This appellant was also entitled to the presumption that he was innocent.
It is a well settled proposition, that the innocence of the accused is presumed until his guilt is established by evidence, in all the material aspects of the case, beyond a reasonable doubt, and to a moral certainty; and it may also be stated that the evidence of guilt must be "strong and cogent," and that unless it is so strong and cogent as to show the defendant's guilt to a moral certainty he should be acquitted.
I deem it pertinent to reiterate here the statement made by the court in our recent case of Turner v. State,33 Ala. App. 607, 35 So.2d 624, 625, wherein this court said:
"Human liberty is too sacred and has been too dearly bought to authorize a conviction except upon legal evidence connecting the defendant with the commission of a crime, and that beyond a reasonable doubt. Facts which would warrant a suspicion however strong do not overcome the presumption of innocence."
The inconsistency of the majority opinion, here, Carr, J., is made clearly apparent in the case of Austin v. State,31 Ala. App. 630, 21 So.2d 126, by Carr, J., wherein the following appears:
"The prosecuting witness, a little girl nine years of age, testified that, while attending a picture show in the city of Florence, Alabama, the defendant, against her consent, held her and placed his hands on her body in an indecent and rude manner. If established by the required proof, this was sufficient upon which to base a conviction as charged."
In said case the defendant was charged withassault and battery. The recital of the facts in the above case, as will be noted, were far more heinous in every respect from the facts in the case at bar, where the alleged wrongful act merely discloses that this appellant's feet touched the feet of the girl in front of him, which act defendant testified was purely accidental, and for which he immediately apologized, and there is no contention that he undertook to further molest the girl by word or act.
The Moore case, adverted to in the majority opinion, was recently promulgated by this court with a full concurrence. The decision was predicated upon opinions of the Supreme Court, exactly in point. The overruling of said case, in the majority opinion, of course is limited to the opinion of this court and has no application to the several Supreme Court's decisions upon *Page 352 which the Moore case was rested. I still maintain the opinion in said case is sound and not subject to the criticism indulged in the majority opinion.
The conclusion in this case, as declared by the writer, was not dependent upon the Moore case, solely, said case need not have been cited although in point. The undisputed facts of the case at bar clearly disclose that the reversal of the case should be had and entered.
As stated, the instant case was tried without a jury. The statute authorizes such procedure. Title 15, Section 321, Code of Alabama 1940. However, the next succeeding statute, Title 15, Section 322, Code of Alabama 1940, provides on review of such case, the Court of Appeals or Supreme Court,"shall review the same without any presumption in favor of thecourt below, either on the rulings on the law, or conclusionson the evidence, and if there be error, shall render suchjudgment in the cause as the court below should have rendered." Notwithstanding the clear, explicit and emphatic terms of the statute, above quoted, it has been construed in some decisions to mean that the court's finding should be treated like the verdict of a jury. Such construction is not iron clad or conclusive, or binding upon the reviewing court in every case. The stated construction in effect emasculates and renders null and void the express terms and provisions of the statute which cannot be done, for the law is, the court has no authority to look for the legislative intention in anything but the legislative language; that language may be explained; it cannot be detracted from or added to. The office of interpretation is not to improve the statute; it is to expound it; and the court knows nothing of the intention of an act, except from the words in which it is expressed, applied to the facts existing at the time. May v. Head, 210 Ala. 112, 96 So. 869. Moreover, in the opinion of the writer it would have been difficult, if not impossible to find any jury, of unbiased mind and free from hysterical influence who would ever have returned an adverse verdict on the facts disclosed by this case.
In conclusion, the writer reiterates with emphasis, that the judgment of conviction of the accused in this case, under the evidence, is wrong and cruelly unjust, and repugnant to an unbiased mind. Further, to hold that the act of the defendant, complained of, even in the slightest, tended to cause or encourage the girl in question to become dependent, neglected or delinquent was of necessity, due to unauthorized surmise, conjecture or suspicion, and were it not tragic to the unfortunate accused, would border upon the farcical. The law presumes a person will not commit an immoral act.
Moreover, the writer deems it proper to advert to the unusual and adverse interest extended and plainly manifest from the record, taken by initial judge who tried this case and rendered the judgment of conviction. Further, that on appeal to the circuit court, he appeared as prosecutor, and still further, appeared before the appellate court, on appeal, and made lengthy and impassioned argument for an affirmance of the judgment of the circuit court, and for approval of his own act upon the first trial. So far as the knowledge of the writer goes such a situation and condition was without precedent. As to all this, of course I impute no improper motive, but, as stated, there is no precedent for such activity or procedure. Our Supreme Court said, in the case of Ex parte State of Alabama (In re Stephenson),113 Ala. 85, 21 So. 210:
"It is manifest that this tribunal can recognize no other representative of the state than the attorney general. Whether the state has an interest in the vacation of the order made in a criminal case by a court of competent jurisdiction, or whether there shall be a prohibition of the exercise of jurisdiction, or any other remedial writ prosecuted by the state, — at all times a matter of more or less gravity, — the law commits to the judgment and discretion of the attorney general, and when he proceeds he must proceed in the name of the state."
And further, in said opinion, supra, the court said: "Such application must be made in the name of the state, and must be made by and through the attorney general. *Page 353 There is no other officer entitled to use the name and authority of the state."
After the "extended opinion," supra, of the writer was prepared, and presented to my associates, they deemed it necessary, and did rewrite the majority opinion, which now appears hereinabove. In that opinion as now appears it is admitted "The State introduced evidence relating to twodifferent occasions which occurred about a week apart;" and then proceeds to set out in full the purported evidence as to what occurred on November 30, 1947; and it is evident that the affirmance of this cause was based principally, if not solely, on that evidence. The writer is in full accord with the insistence of able counsel for appellant to the effect, "Evidence as to what happened on the 30th of November was admitted, we presume, on the theory that it tended to identify, or show the intent of the defendant.
In this proceeding the only issue involved was formulated upon the "amended complaint" and defendant's plea of "not guilty," as therein charged. The judgment of conviction in the trial court, from which this appeal was taken, is based solely upon the "amended complaint." As stated hereinabove the only acts complained of in said amended complaint was "that said George Washington Smithson, did within said twelve months in said county did unlawfully place his leg overthe legs of said Barbara Harris, in an attempt to draw herclosely to him."
As to the foregoing, the majority opinion has wholly ignored the issue, supra, upon which the case was tried, or should have been tried. In the lengthy opinion of the majority, no mention is made of the amended complaint, nor of the plea of defendant. Said opinion does state: "The prosecution of the case at bar proceeded in the juvenile court (the appeal in this case is from the judgment rendered by the circuit court) and was based on the alleged violations of Section 324 of the local law." It then proceeds to set out in full said local law. My associates know, of course, that a blanket charge is not permissible in a criminal prosecution, for the law is, no man shall be twice put in jeopardy for the same offense, and of the nature and cause of the accusation made against him he shall be fully informed before he is called to trial, than that accusation he cannot be supposed to stand prepared to answer.
The rule above announced, which requires that all evidence which is introduced shall be relevant to the guilt or the innocence of the accused, is always applied with considerable strictness in criminal proceedings. The wisdom and justice of this are self-evident. The defendant can with fairness be expected to come into court prepared to meet the accusations contained in the complaint only, and, on this account, all the evidence offered by the state should consist wholly of facts which were within the range and scope of the allegations contained in the evidence upon which he is being tried.
In Reynolds v. State, 23 Ala. App. 333, 125 So. 204, 205, the court said:
"It is requisite to a valid complaint, in a prosecution of this kind, that the particular facts, acts, words, conduct, omissions, etc., which it is contended cause accused to be guilty of the offense denounced * * * must be set out in the said complaint."
See also the case of Gallman v. State, 29 Ala. App. 264,195 So. 768, 773, where the court said:
"The State, in the case at bar, should not have been permitted to build up a conviction of the defendant for the offense with which he was charged in the indictment on inferences of guilt from the fact that he had committed another offense, or other offenses. In the case of McGee v. State, 24 Ala. App. 124, 131 So. 248, 250, it is said with reference to the rule announced: 'The justice, fairness, and reason for the rule is apparent, and, as said in the case of Gassenheimer v. State, 52 Ala. 313: "A strict adherence to it is necessary to prevent criminal prosecutions from becoming instruments of oppression and injustice." Dennison v. State, 17 Ala. App. 674, 677, 88 So. 211.'
"The defendant, here, was, in fairness, expected to appear in the lower court prepared to meet only the accusations contained in the indictment returned against him, *Page 354 * * * and on this account the evidence offered by the State should have been confined wholly to facts which were within the range and scope of the allegations contained in that indictment and upon which the defendant was to be tried."
Further discussion is not deemed necessary. Due process of law has been denied to this appellant, and in my opinion to permit the judgment of conviction to stand, in the face of what has been said, would be unconscionable.