the appellant was not "probably injured in his substantial rights by reason" of the following statement by the trial court at the opening of the trial: "The matter before you comes by virtue of a law which allows any person convicted in the Recorder's Court to appeal his case into the Circuit Court, to be tried de novo, by a jury of his peers, and the matter before you, in short, a complaint by the City of Birmingham that ...."
How later courts described this case
- the appellant was not "probably injured in his substantial rights by reason" of the following statement by the trial court at the opening of the trial: "The matter before you comes by virtue of a law which allows any person convicted in the Recorder's Court to appeal his case into the Circuit Court, to be tried de novo, by a jury of his peers, and the matter before you, in short, a complaint by the City of Birmingham that ...."
Written by the judges who cited it.
The opinion
On Rehearing.
In his brief in support of his application for rehearing counsel for appellant writes that we “inadvertently failed to refer to that portion of section 600 of the 1944 General Code of the City of Birmingham which constitutes the most flagrant violation of the Constitution of the United States and of the State of Alabama, and that part is hereinafter set out: “ ‘It shall not be a defense to the chargeof possessing the ticket, writing, paper, slip, document, memorandum, list, article, matter or thing, that it or any of them so possessed have not actually been used or were not then being used, or were not intended to be used, in the operation or in connection with the operation of a lottery, policy game or other game of chance.’ ”
Our failure to discuss the above point was not through inadvertence, but because the point had, in our opinion, been discussed and answered in the opinion in City of Birmingham v. Reed, supra. We are, however,- at the insistence of appellant’s earnest counsel, glad to comply with his request that this point be further discussed.
The total effect of that portion of the ordinance complained of is merely to make illegal the possession of the articles mentioned, (and which from the ordinance as a whole are articles customarily or usually used in the operation of a lottery) regardless of intent or knowledge of the possessor.
It is perfectly permissible for a legislative body to make the doing of an act criminal without regard to the intent or knowledge of the doer, and if such legislative intent appears, the courts must give •it effect, although the intent of the doer may have been innocent. Such principle is particularly applicable to enactments passed as police measures. Smith v. State, 223 Ala. 346 , 136 So. 270 ; Allen v. State, 33 Ala.App. 70 , 30 So.2d 479 .
Nor is the punishment of a person for an act prohibited by law a denial of due process of law merely because the accused is ignorant of the facts making it so, for a governing body “may in the maintenance of a public policy provide ‘that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.’ Many instances of this act are to be found in regulatory measures of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.” Taft, C. J., in United States v. Balint, 258 U.S. 250 , 42 S.Ct. 301, 302 , 66 L.Ed. 604 .
*391 Writing to a point highly similar, to the one now' being considered, the Court of Appeals of Maryland in Ford v. State, 85 Md. 465 , 37 A. 172, 175 , 41 L.R.A. 551 , 60 Am.St.Rep. 337 , made the following observation which we think is perfectly applicable to the present' question: “But it is contended that the statute deprives the accused of the right of trial by jury, and of his constitutional guaranty that he be not deprived of his liberty without due process of law. But the fallacy of the argument is in assuming that it does interfere with those rights. He had the perfect right to prove either that the articles charged in the indictment were not found in his possession, or that those found were not such as the law prohibited him from having. That is the issue made by the statute. It does not deprive him of the presumption of innocence to which he is entitled, but it does make it a crime for him to have in his possession that which is of no lawful use in this state, and which injuriously affects the morals and interferes with the welfare of the people; and it is evident that the statute has made the mere possession of the articles a crime, because that is the most effectual way to break up the lottery business”.
The other points raised by appellant in his application have in our opinion been disposed of in the original opinion, and no further discussion is indicated.
Application Denied.