Banks v. State

Citation18 Ala.App. 376,93 So. 293
Decision Date30 June 1921
Docket Number5 Div. 375. [*]
PartiesBANKS v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied Jan. 31, 1922.

Appeal from Circuit Court, Russell County; J. S. Williams, Judge.

Mary Banks was convicted of violating the prohibition law, and she appeals. Affirmed.

Frank M. de Graffenried, of Seale, for appellant.

Harwell G. Davis, Atty. Gen., for the State.


Mary Banks, the appellant, was convicted in the circuit court of Russell county, Ala., of the offenses of distilling and of having in her possession a still, appliance, etc., as was averred in the indictment presented against her by the grand jury of said county. The evidence upon which the defendant in the court below was convicted was without dispute. The evidence presented by the record in this case was as follows:

The sheriff and deputy sheriff of said county, without any search warrant and without any legal justification or excuse searched the dwelling house and appurtenant premises of the appellant, and there found a still, or appliance, which each of said officers testified was suitable and adapted to the distillation of prohibited liquors, and they also found, as testified to by each of them, certain beer being made ready for distillation into moonshine whisky, or other prohibited liquors or beverages.

The defendant in the court below first objected to the appearance of each of said witnesses, and to any testimony that might be elicited from them, or either of them, upon the grounds that said testimony was procured by said witnesses through an illegal and unwarranted search of her dwelling house and appurtenant premises, and in violation of article 1, § 5, of the Constitution of the state of Alabama, and also in violation of article 1, § 6, of the Constitution of the state of Alabama. Objections to the testimony of each of said witnesses were likewise interposed as said testimony was adduced, and by appropriate and repeated exceptions to adverse rulings of the trial court upon the insistence of the defendant in the court below that the procurement and admission of such testimony was in violation of her constitutional rights, specifically set out in article 1, §§ 5 and 6, respectively, of the Constitution of the state of Alabama, prohibiting unreasonable searches and seizures, and prohibiting self-incrimination. The same constitutional questions are presented by this appeal to this court.

The question of prime importance in this case is: What judicial construction shall be given to article 1, § 5, of the Constitution of this state, which prohibits unreasonable searches and seizures?-because it is without dispute that all of the testimony offered upon the trial of said case was procured through a search of the dwelling house and appurtenant premises of the appellant, made by the sheriff and deputy sheriff of said county without any search warrant or other legal process. Article 1, § 5, of the Constitution of the state of Alabama, provides as follows:

"That the people shall be secure in their persons houses, papers, and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause supported by oath or affirmation."

A consideration of the foregoing constitutional provision was had by the Supreme Court in the case of Shields v State, 104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17, which case was followed by the cases of Pope v. State, 168 Ala. 33, 53 So. 292, and Robertson v. City of Montgomery, 201 Ala. 198 77 So. 724, and which case was also followed by the Court of Appeals in the case of Bell v. State, 16 Ala. App. 36, 75 So. 181. In the Shields Case, supra, it was held that:

"Evidence obtained by a search, which was illegal and unauthorized, is admissible to fix the guilt of a criminal offense upon the person searched, and the admission of such evidence so obtained is not violative of the constitutional guaranty that a person accused shall not be compelled to give evidence against himself, or of the further guaranty 'that the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizures or searches.' *** However unfair or illegal may be the methods by which evidence may be obtained in a criminal case, if relevant, it is admissible, if the accused is not compelled to do any act which criminates himself, or a confession or admission is not extorted from him, or drawn from him by appliances to his hopes or fears."

The soundness of the construction reached in Shields' Case, supra, is challenged by the present appeal, and the insistence is made that the doctrine of stare decisis does not obtain in this state, and that under section 5965 of the Code of 1907 Shields' Case should be overruled and disregarded, if the rule announced in that case is unsound when measured by the language of the Constitution and the evident purposes sought to be obtained by its provisions.

This court has given a most serious and careful consideration to the question presented, and has reached the conclusion that the rule of evidence and procedure announced in the Shields Case, and followed by the later cases to which we have referred, is repugnant to and inconsistent with the plain objects and purposes sought to be obtained under the provisions of article 1, § 5, of the Constitution of Alabama. Said section of the Constitution expresses a plain, outspoken, honest guaranty that the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches. The right sought to be maintained, preserved, and enforced by this constitutional guaranty is one that relates to a fundamental principle of government, for the supreme purpose actuating mankind in the organization of society was the preservation of life, liberty and property. The end sought to be obtained by this constitutional provision was to prevent all unlawful invasions of the sanctity of the home and the privacies of life. The right protected is the indefeasible right of personal security and personal liberty, and traces its existence to that concession of Magna Charta obtained on the battlefield of Runnymede by English freemen from John, their king, on the 15th day of June, 1215, and which guaranteed:

"No freeman may be taken, or imprisoned, or detained, or outlawed, or banished, or in any way destroyed, nor will we go against him, or send against him, except by the lawful judgment of his peers, or by the law of the land. To none will we sell or deny or delay right or justice."

The case of Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, construing the Fourth and Fifth Amendments to the federal Constitution, which contains provisions in all respects identical to article 1, §§ 5 and 6, of the Constitution of this state, holds:

"It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319), have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is that such rights are declared to be indispensable to the 'full enjoyment of personal security, personal liberty, and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen-the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or 'gradual depreciation' of the rights secured by them, by imperceptible practice of courts, or by well-intentioned, but mistakenly overzealous, executive officers."

Concisely stated, the conclusion reached in the Shields Case is that evidence obtained through and by means of a plain violation of of a constitutional prohibition is admissible, if said evidence is relevant to the issue of the case on trial. In other words, a rule of evidence, or of procedure, is declared by the Shields Case to be paramount to the Constitution itself. The fallacy of this doctrine is clearly and conclusively demonstrated by the Supreme Court of the United States in the case of Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, in the following in language:

"The government now, while in form repudiating and condemning the illegal seizure, seeks to maintain its right to avail itself of the knowledge obtained by that means, which otherwise it would not have had. The proposition could not be presented more nakedly. It is that although, of course, its seizure was an outrage which the government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the government can gain over the object of its pursuit by doing the forbidden act. Weeks v. U. S., 232 U.S. 383, to be sure had established that laying the papers direct before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one. In our opinion such is not the law. It reduce the Fourth

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