BROWN vs. MAYOR &c. of MOBILE, 23 Ala. 722

LIGON, J. Proceedings for the recovery of fines or penalties for the violation of ordinances, made for the government of cities or incorporated towns, are quasi criminal in their charac‘ter, and as such should be conducted with greater regard to strictness than attaches to the pleadings in civil cases. The recovery of the penalty is also a punishment of the of-fence against which the violated ordinance is aimed, and the prosecution should he so conducted, in respect to its pleadings, that the party proceeded against may know at once the charge brought against him and he enabled to meet it directly.

If it he so general in its character, or so loose in its averments, as not to embody a distinct and substantive offence on which an issue could bo understanding^ made, and to which the accused could direct his proof without danger of misapprehending the accusation brought against him, he is not hound to answer it. The rules applicable to indictments for misdemeanors, so far as certainty in averring the offence is concerned, may, we think, be applied with much propriety to cases of this kind, and would, perhaps, he the host and safest which could he adopted for their government.

It will not do to leave them to he conducted under the loose and general rules which control appeals in civil cases. Whenever such proceedings are instituted, they imply the commission of a crime, and their end is the punishment of that crime. In this they are wholly dissimilar from the ordinary appeals sent up by justices of the peace to the Circuit Courts of this State. If these rules are applied to the case before .us, we can be at no loss how to dispose of it. In the case of Francois v.

The State, 20 Ala. 83, which was a prosecution for an offence against the laws of the State forbidding the trading with slaves without permission from the master, owner or overseer, the indictment charged the defendant with selling “to a slave, whose name is to the jurors unknown.” This, it wras held, wras too general to authorize a judgment against the defendant after his conviction by the jury, and such an indictment it was declared would be bad on demurrer, the court remarking : “ The rule is well settled, not only that the facts and circumstances which make up the offence must be stated in the indictment, but they must bo stated with such certainty and precision, that .the defendant may be enabled to judge whether they constitute the offence charged or not, that ho may demur or plead accordingly; in order that he may prepare his defence, may plead a former acquittal or conviction, and that there may be no doubt as to the judgment to be given.” Judged by these rules, is the statement in this case sufficient to put the accused upon liis defence to the merits?

It is charged that the defendant below violated the ordinance of the City of Mobile against trading with slaves, by selling spirituous liquors to a slave, without averring either the name, or owner, or employer of the slave with whom ho dealt. This ordinance is substantially the same with the statute of the State upon the same subject, except as to the punishment. Against a charge thus generally and indefinitely made, it would be difficult for the accused to prepare his defence.

He may have the permission of the masters or employers of a hundred slaves to trade with them, and the slave with whom he is charged with unlawfully trading may be one of these; but which of them, it is impossible for him to know from the pleadings, in the case. This permission may have boon verbally given, and he cannot tell which of the owners or employers to summon in his defence; he must either summon all, or submit to an unjust recovery.

And if he dare to bring in all, he is subject to be taxed with the costs of every one except two, and thus be compelled to pay out more than the amount of the fine imposed by the ordinance, in the attempt to make out his defence ; and this, when he is wholly innocent of the offence imputed to him. Our opinion is, that the statement is not sufficiently certain in describing the offence, on account of the commission of which the plaintiffs below become entitled to recover the penalty sued for, and consequently the demurrer to that statement should have been sustained.

The charge requested by the defendant in the court helow, was properly refused. The testimony before the jury as to the defendant’s selling the spirituous liquors to the slave, was, in a high degree, circumstantial in its character, requiring to be weighed before its torce could be rightly ascertained, and it is the peculiar province of the jury to do this. The correct course in such cases is, to refer the whole testimony to the jury, that they may say how far it goes to make out the plaintiff’s case, and render their verdict accordingly.

This is what was done by the court below, and its action in this respect is free from error. For the error of the court in overruling the demurrer, the judgment must be reversed, and the cause remanded.