By the repeal, as to Butler county, of the third and fourth sections of the act of March 19, 1875, “in relation to trials for misdemeanors in Tuskaloosa and other counties therein named,” that act, so far as it applies to Butler county, was left without any provision for a trial by jury in the County Court, on indictments for misdemeanors transferred to that court from the Circuit Court under the second section of the act.- — -Acts of 1874-75, p. 235; Acts of 1875-76, p. 361. It is provided by the second section of the act that, upon the transfer and delivery of such indictments to the County Court, “the jurisdiction of said Circuit Court shall cease, except in cases of appeals herein*36after provided for, and exclusive jurisdiction thereof shall vest in said County Court.” There was no further reference to appeals in the act as it originally stood except in a proviso in the third section, “that nothing herein contained shall in any manner interfere with the right of the accused to appeal after conviction, to the Circuit Court for said county.” Though this third section has been repealed, yet, in view of the saving clause of the second section, it may fairly be concluded that it was the intention of the legislature, in repealing the third and fourth sections only, to preserve the right of appeal to the Circuit Court, as explicitly referred to in the second section. But the language of the second section clearly gives to the transfer of the indictment to the County Court the effect of terminating the jurisdiction of the Circuit Court over the case, unless it is brought back there by appeal. Under this provision, the Circuit Court can not again get the indictment before itself for trial in any other way. As the act, in'the condition in which it was left after the repeal of the third and fourth sections, merely confers upon the County Court concurrent jurisdiction with the Circuit Court for the trial of all misdemeanors, except violations of the revenue law of this State, and provides for the transfer from the Circuit Court, upon the day of its adjournment, of all indictments then pending and untried in said Circuit Court against persons charged with the commission of such misdemeanors, without making provisions regulating the mode of procedure and trial in cases so transferred ; we take it that the intention of the legislature was, that the trial- of such cases, when transferred to the County Court, should be governed by the provisions of the general law regulating the proceedings in that court, except so far as such general law waá rendered inapplicable by some provision of the special act in question.
Under the general law governing the trial of misdemeanors in the County Court, unless the defendant demands a trial by jury, the judge determines both the law and the facts, without the intervention of a jury, and awards the punishment which the character of the offense demands; and if the defendant demands a trial by jury, no such trial is had in the County Court, but the case is sent for such trial to the next term of the Circuit or City Court having jurisdiction of the offense. — Code, §§ 4219, 4220. Now, the jnovision of the general law which is applicable when the defendant demands a trial by jury can not be reconciled with the requirements of the special act under consideration; *37for that act expressly provides that, after tbe transfer of tbe indictment to tbe County Court, tbe jurisdiction of tbe Circuit Court shall cease, except in cases of appeals ; while, under tbe provision of tbe general law, section 4219 of tbe Code, when tbe defendant demands a trial by jury, there is no trial at all in tbe County Court, but tbe case goes to tbe Circuit or City Court for trial, without an appeal. Any mode, except by appeal, of getting an indictment back into tbe Circuit Court for trial, after it has been transferred therefrom to tbe County Court, pursuant to tbe provisions of tbe act under consideration, is in conflict with the express terms of that act. It follows, therefore, that tbe provision for sending a case in tbe County Court to tbe Circuit or City Court for trial, when tbe defendant demands a trial by jury, does not apply to indictments transferred from tbe Circuit Court to tbe County Court of Butler. Tbe result is, that under tbe provisions of tbe act in question, tbe defendant can not demand a trial by jury in tbe County Court, but tbe case must be there tried by tbe judge alone, who determines tbe law and tbe facts, without tbe intervention of a jury. But there is nothing in tbe special act to render inapplicable tbe provisions of tbe general law giving tbe defendant tbe right of appeal to tbe Circuit or City Court of tbe county, with a trial de novo there before a jury, in all cases of conviction in tbe County Court. — Code, §§ 4226-4231. Tbe result of tbe special act, after tbe repeal of tbe third and fourth sections, is that it provides for tbe trial by tbe county judge, without a jury, of cases transferred from tbe Circuit Court, and that tbe defendant in such cases can obtain a jury trial only, by an appeal to tbe Circuit Court of Butler county, after conviction in tbe County Court. Tbe question, then, is as to tbe validity of a statute providing for tbe trial of offenses prosecuted by indictment, by a judge without a jury, and allowing tbe defendant an opportunity for a trial by jury only upon an appeal, which be can not obtain except upon tbe condition of entering into bond with two or more sufficient sureties, tbe bond to be in such penalty as tbe judge who has convicted him without a jury may prescribe, and to be approved by such judge. — Code, § 4226.
In all prosecutions by indictment, tbe accused has tbe right, expressly guaranteed to him by tbe Constitution, to “a speedy public trial by an impartial jury of tbe county or district in which tbe offense was committed.’’ — Cons, of Ala. Art. I, § 7. It has been held that similar constitutional provisions did not invalidate statutes authorizing a *38criminal trial without a jury in the first instance, but which' gave the defendant an unqualified and unfettered right of appeal,' and a trial by jury in the appellate court. Jones v. Robbins, 8 Gray, 329 ; State v. Beneke, 9 Iowa, 203 ; Sedgwick on Stat. & Cons. Law (Pomeroy’s Ed.), 491. In Collins v. State, 88 Ala. 212, it was suggested in the opinion, that the constitutional right might be practical^ preserved, by securing a right of appeal to a higher court, with a right of trial there by a common-law jury. It is manifest that, in many cases, the right would be -a mere shadow without the substance, if conditions may be imposed upon its enjoyment with which the defendant may be powerless to comply. If the defendant, upon his conviction by a judge acting without a jury, must suffer the punishment to which he is sentenced on such conviction, unless he can give a bond with two or more sufficient sureties in such penalty as the judge who has tried him may prescribe, then his right to a trial by jury is wholly dependent upon his ability to obtain such sureties. There is no alternative of a commitment to await a new trial in the court to which the case is taken by appeal. In fact, there is no appeal unless the bond with sureties is given, but the execution of the sentence proceeds. If the right to obtain a trial by jury may be made dependent upon the ability to give a bond with sureties, after a conviction, why may not the enjoyment of the other rights enumerated in the same section of the Constitution be subject to similar conditions or restrictions ? Would it be competent for the legislature to deny to the accused either of the rights to be heard by himself and counsel or either, to demand the nature and cause of the accusation, to have a copy thereof, to be confronted with the witness against him; to have compulsory process for obtaining witnesses in his favor— except after a conviction on. a trial in which either or all these rights were denied, and upon the condition that he give bond with sureties and in such penalty as the convicting magistrate may prescribe ? If- so, accused persons who are so unfortunate as not to ,b.e able to furnish bonds with good and sufficient sureties are practically unprotected by the Constitution against such Star Chamber proceedings. Manifestly, the provision of the Constitution can not be so construed as to admit of the possibility of such results.
We fully approve what was said by the Supreme Court of Minnesota in a case involving substantialy the same question as that now presented. — State v. Everett, 14 Minn. 439. This language was used in the course of the opinion in that *39case : “It is contended tbat tbe defendant’s constitutional right to a trial by jury was not violated, because, although he was in the first instance tried by a jury of six men, he had the right of appeal to the District Court, where it was his privilege to be tried by a jury of twelve men. If this right of appeal is so absolute/ unqualified and unfettered, that it, together with the right of trial by jury, are secured to every man who demands an appeal, we are of opinion that the requirement of the Constitution is satisfied. But these rights must be secured. They must not be made to depend upon a condition with which the party prosecuted may or may not be able to comply.” It was there held that this right could not be regarded as secured, when its exercise was conditional upon the defendant entering into a recognizance with one or more sureties. Under the statute there considered, as under the one now before the court, no option was left to the defendant to enter into the recognizance, or to stand committed.
The right of a defendent, charged with a misdemeanor, to a trial by jury, may be waived; and a statute authorizing his trial without a jury, when there is such a waiver, is constitutional. — Connelly v. State, 60 Ala. 89. But our conclusion is, that a statute which, in all cases of misdemeanors, except violations of the revenue law, cuts off the right of the accused to demand a trial by jury unless he gives a bond with sureties, is in violation' of the above quoted section of the Constitution. No statute setting up such a barrier can be permitted to obstruct the free exercise of a constitutional right. It is to be noted that the constitutional provision in question applies to “prosecutions by indictment.” The cases to the effect that in ad quod damnum proceedings a provision for a common-law jury on an appeal from a preliminary assessment of damages satisfies the requirement of the Constitution in that regard, have no bearing upon the question presented in this case; as the Constitution secures in such proceedings, on the demand of either party, the right to have the amount of the damages determined by a jury according to law, only “in all cases of appeals” from preliminary assessments by viewers or otherwise, and not in the first instance. — Constitution of Ala. Art. XIY, § 7; Postal Teleg. Cable Co. v. Ala. Gr. So. R. Co., 92 Ala. 331; Woodward Iron Co. v. Cabaniss, 87 Ala. 328; Montgomery So. R. Co. v. Sayre, 72 Ala. 443.
The result of the foregoing considerations is, that, upon the repeal of the third and fourth sections of the act in question, the remaining provisions, standing by themselves, *40are such that tbeir enforcement involves an infringement of tbe constitutional right of tbe accused to demand a trial by a jury; and that, as a consequence, tbe act is null and void.
It follows from this conclusion, that tbe indictment should not have been transferred to the County Court under tbe provision of tbe void statute, but should have been retained in tbe Circuit Court, and finally disposed of there. It was, however, transferred to tbe County Court, and tbe defendant was there tried and convicted by tbe county judge, acting without a jury. It is plain that the defendant could not be held in custody under, that judgment and sentence. But this appeal is not from that proceeding. Tbe defendant appealed to the Circuit Court, and was there convicted on a trial de novo before a jury. Tbe present appeal is from tbe judgment of tbe Circuit Court. That court bad undoubted jurisdiction to try tbe case in tbe first instance. Did it lose its right to try tbe case by tbe transfer of tbe indictment to tbe County Court, where it remained for several terms? It may be that a failure to keep tbe case on tbe docket of tbe Circuit Court, without a withdrawal and filing under tbe statute, and to have it regularly continued there from term to term, might be taken advantage of by tbe defendant as operating a discontinuance. But such an irregularity may be waived, by tbe party entitled to take advantage of it. By appealing the case to tbe Circuit Court, and there pleading to the indictment, and permitting tbe trial to proceed to a termination, without in any way raising tbe question of discontinuance vel non, tbe defendant waived tbe irregularity, conceding that it amounted to a ground of discontinuance. — Ex parte, Hall, 47 Ala. 675; Warren v. State, 19 Ark. 214; Walker v. Cuthbert, 10 Ala. 213; Shorter v. Urquhart, 28 Ala. 360; Torrey v. Forbes, 94 Ala. 135.
One witness was permitted to state, that tbe defendant “was talking mad;” another, that tbe defendant and Boswell “looked like they were trying to fight as I went on by them with tbe ladies. I saw them trying to fight, or trying to get together.” These were, mere statements of facts. There was no error in admitting them.— Watkins v. State, 89 Ala. 82; Perry v. State, 87, Ala. 30; S. & N. R. Co. v. McLendon, 63 Ala. 266.
Whether a witness who saw tbe difficulty between tbe defendant and Boswell, near tbe gate of tbe inclosure in which tbe gin-house was located, could have seen ladies passing by the gate while be was there, was a fact of which tbe jury was as competent to judge as the'witness. There was no *41error in sustaining an objection to a question calling for tbe conclusion of tlie witness on this inquiry. — East Term., Va. & Ga. R. Co. v. Watson, 90 Ala. 41.
There was evidence tending to show that the defendant engaged in the difficulty at the gate only after he had turned back, and when Boswell had followed him, and struck at him once or twice with his knife. Though the defendant could still have avoided the difficulty, so that his engaging in it then should be regarded as willful, yet that by itself would not necessarily constitute “rude or indecent behavior,” within the meaning of the statute. The disturbance authorizing a conviction must have been “by rude and indecent behavior, or by profane and obscene language.” — Code, § 4082. The expression “rude or indecent behavior,” as here used, at least implies conduct which is boisterous, rough or uncivil, or is offensive to modesty or delicacy. It can not fairly be said that one • is guilty of such conduct who merely strikes back at another by whom he is insulted and assaulted, in the presence or within the hearing of women, though he could have avoided a continuance of the difficulty by withdrawing from it without peril to himself. There was evidence in the case to support all the elements of the charge against the defendant. But, on the phase of the evidence above mentioned, the act of the defendant in engaging in the difficulty at the gate could not properly be characterized as “rude or indecent behavior,” within the meaning of the statute. Wilfully engaging in a fight, under the circumstances mentioned, would not, by itself, render the defendant guilty of a disturbance denounced by the statute. It follows that the oral instruction of the court on this subject, and the written charge given at the instance of the State, were erroneous.
For the error in these rulings the judgment must be reversed.
Reversed and remanded.