This is an original petition for writ of mandamus to require the Circuit Court of Jefferson County, Hon. George Lewis Bailes, as Circuit Judge presiding, to vacate an order consolidating the petitioners' cases to be tried as one case before the same jury; and to require the circuit court "to make and enter an order in each of said causes forever discharging petitioners from further prosecution in this cause."
Upon the filing of the petition the issuance of rule nisi was waived by the respondent and he answered. The case was submitted on the petition and exhibits and on the answer and exhibits. The averments of the answer not being controverted as to matters of fact will be taken as true. Code 1940, Tit. 7, § 1073; Lee v. Cunningham, 234 Ala. 639, 641, 176 So. 477.
The ordinance under which petitioners were each arrested and tried in recorders' court makes it unlawful for any person to possess a "ticket, writing, paper, slip, document, memorandum, list, article, matter or thing of any nature or kind whatsoever, which is customarily or usually used in the operation of a lottery, policy game or game of chance of any sort or kind, or which is of a kind which is customarily used in the operation of a lottery, policy game, or other game of chance of any sort of kind, * * *." General City Code of Birmingham, 1944, § 600, p. 202, which is a codification of Ordinance 258-F, attached to the answer of respondent.
Each of defendants executed an appeal bond, appealing his or her case to the circuit court as authorized by Code 1940, Tit. 37, § 587, and said appeal bonds were filed in the circuit court, and said causes were each separately docketed therein. No transcript of the proceedings before the recorder has ever been filed and, so far as *Page 340 appears, no complaint was filed in either the recorders' court or in the circuit court.
Section 1049, Code of said City (§ 5726, Code 1930), provides that: "When any person is arrested, with or without a warrant, for a violation of any city ordinance or law, it is the duty of the officer making the arrest to forthwith bring such person before the recorders' court, or to deliver him to the city warden, who shall detain him in custody until he can be brought before such recorders' court to be dealt with according to law, unless such person shall give bond, * * *. On giving such bond, such person shall be discharged from custody, but the approving officer shall forthwith deliver such bond to the recorders' court."
Section 1052 of the present city code (§ 4920, Code 1930) provides, inter alia, "* * * No statement of the offense need be made other than that contained in the affidavit or warrant of arrest, and if the defendant has been arrested without a warrant, the entry on the docket of the offense charged shall be treated as such statement, unless the defendant shall demand a written complaint. * * *."
The answer asserts that in the 1930 Code of the City of Birmingham, Section 4924 provides that when two or more persons are charged with the same act or offense, "They must if practicable be prosecuted and tried jointly so as to have but one trial; provided, however, that on the application of a defendant the Recorder may when satisfied that justice requires it try the cases separately. The eight petitioners were tried in recorders court in less than two hours jointly and no severance was demanded. * * *." This ordinance, in substance, is the same as Section 1053 of the present city code.
Section 1054, City Code 1944 (§ 5737, Code 1930) provides: "When any person who is convicted and fined or fined and sentenced to hard labor for a breach of any city ordinance or law, fails to pay the fine and costs, the recorder may commit him to custody or to hard labor on the streets or other works of the city until such fine and costs are paid, or such hard labor is performed, * * *." Embodied in this section is a form of judgment to be rendered by the recorder and signed by him.
The respondent justifies his entering the order consolidating said cases for trial as one case on the ground that, "It is the opinion of respondent that all eight petitioners could be tried fairly and justly before one jury within a day, whereas if a separate trial were given to each petitioner eight separate juries would have to be empanelled, eight trials would be required, all the witnesses would necessarily have to return on separate days over a long period of time, and thereby additional unnecessary costs would be incurred, and eventually, perhaps, there would be eight separate appeals to the appellate courts, When one would suffice."
The respondent also contends that Section 221, Tit. 7, Code 1940, authorized the consolidation of said eight cases. The last cited section of the code relates to procedure in civil actions at law and is not applicable to criminal prosecutions or prosecutions which are quasi criminal, which are governed by the law of criminal procedure.
The sine qua non of the offense denounced by the ordinance is the possession of any ticket, writing, etc., an offense in its nature which can not be committed jointly by two or more persons. The eight appeal bonds, without more, were sent up by the city, and said eight cases were docketed and separately numbered, and as such were each set for trial as a separate prosecution. We are of opinion that each of said defendants was entitled to a separate trial. The rights of defendants, who if convicted are subject to fines or hard labor, should not be lost sight of in an effort to speedily dispose of judicial business.
The circuit court erred in entering the order consolidating said eight cases to be tried as one. Unless the respondent is content to set aside and vacate said order, upon being advised of this opinion, the writ of mandamus will issue.
The other phase of the petition which seeks to discharge defendants is based upon the provisions of § 587, Tit. 37, Code 1940, which provides inter alia: "When an appeal is taken, as provided for herein, said appeal shall be filed by the city in the court to which said appeal is returnable within sixty days; and if the city shall fail to file said appeal within said time, the city shall be deemed to have abandoned the prosecution of said cause, and the defendant shall not be required to further answer *Page 341 or appear, and the bond shall thereafter be void."
We are of opinion that the filing of the appeal bond meets the requirements of the quoted provisions of the statute. Ex parte State ex rel. Attorney General (McLosky v. State),210 Ala. 458, 98 So. 708; Chaney v. City of Birmingham, ante, p. 147, 21 So. 2d 263.
Writ of mandamus granted conditionally.
GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.
On Rehearing.