Opinion
SC 841.
September 12, 1974.
Appeal from the Circuit Court, Montgomery County, Embry, Special Judge.
Henry C. Chappell, Jr., Montgomery, for petitioner.
The right of jury trial guaranteed by the Constitution of Alabama is the right to a jury at the first trial by which the defendant is put in jeopardy. Alford v. State, 170 Ala. 178, 54 So. 213. The right to jury trial is preserved in causes known to the common law, including larceny. In re Fauldan, 9 Mackey 433 (1892); United States v. Jackson, 9 Mackey 424 (1892); City of Mobile v. Gulf Dev. Co., 277 Ala. 431, 171 So.2d 247; Porter v. Alabama Farm Bureau Mutual Casualty Insurance Company, 279 Ala. 49, 187 So.2d 254. Whether an offense requires a jury trial depends primarily upon the nature of the offense. District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177. A violation of a municipal ordinance which is also a criminal law of the State of Alabama or which ordinance has reference to a violation of a criminal law of the State of Alabama is such an offense as entitles the accused to trial by jury. Miller v. City of Birmingham, 151 Ala. 469, 44 So. 388; Bray v. State, 140 Ala. 172, 183, 37 So. 250.
No brief for respondent.
In view of the holdings in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), Walker v. Dillard, D.C., 363 F. Supp. 921 (1973), and Manns v. Virginia, 213 Va. 322, 191 S.E.2d 810 (1972), all decided since Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, rehearing denied 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412, (1968), we reaffirm the position taken by this court, holding that a jury trial should not be required in a municipal court or other court from which an appeal can be taken as a matter of right to the circuit court or other court of similar jurisdiction, where the defendant can have a trial de novo before a jury.
Petition of Laura Birmingham for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Birmingham v. Evans, 53 Ala. App. 358, 300 So.2d 396, is denied.
Writ denied.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur.