Bell v. State

Citation16 Ala.App. 36,75 So. 181
Decision Date03 April 1917
Docket Number6 Div. 213
PartiesBELL v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied May 15, 1917

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Joe Bell was convicted of violating the prohibition law, and he appeals. Affirmed.

Goodwyn & Ross, of Bessemer, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

BRICKEN J.

The defendant was tried and convicted in the city court of Bessemer for the offense of violating the prohibition law. The warrant was sworn out on the 22d day of February, 1916 and the writ of arrest was issued and the defendant was arrested and made appearance bond on that same day. The complaint contained seven counts, and charged practically all of the offenses under the prohibition law. As a defense thereto, among other things, the defendant filed four pleas substantially the same facts, in which he claimed former jeopardy by reason of his conviction in the mayor's court of Bessemer. The state demurred to all of the pleas separately and severally, alleging many grounds of demurrer the vital ground being No. 8, which goes to all four pleas and sets up the fact that a conviction in the recorder's or mayor's court is not a bar to a prosecution of the same offense in the state courts. Other grounds of demurrer take the point that some of the offenses charged in the complaint were not identical with that upon which the defendant was tried in the mayor's court.

There was no error in sustaining the demurrer to the defendant's plea of former jeopardy. Prior to the adoption of the Code of 1907 (which, under section 1222 thereof, made an acquittal or conviction in municipal court for misdemeanor or for violation of an ordinance committed within the police jurisdiction of the municipality a bar to a prosecution for the same offense in the state courts) the rule, long followed and firmly established, was that a judgment in a municipal or recorder's court was not pleadable in defense to a prosecution of the same offense in the state courts. Engelhardt v. State, 88 Ala. 100, 7 So. 154; Mayor v. Allaire, 14 Ala. 400; Harris v. State, 128 Ala. 41, 29 So. 581; Mayor v. Fitzpatrick, 133 Ala. 616, 32 So. 252; Moses v. Mayor, 52 Ala. 207. However, the adoption of section 1222 in the Code of Alabama of 1907 changed this rule and made a judgment in a recorder's court a bar to a prosecution in the state court for the same offense. This law continued in effect until the Legislature of 1915, on the 22d day of September, 1915, amended section 1222 of the Code by eliminating that clause providing that a judgment in the recorder's court should bar prosecution for the same or substantially the same offense in the state courts. The elimination of this clause put the law back to the original status and made the cases above cited applicable to the case at bar. Acts 1915, p. 724. It therefore follows that the court's action in sustaining the state's demurrers was without error. Johns v. State, 13 Ala.App. 283, 69 So. 259.

On the trial of this case, state witness Steele testified to the search of defendant's premises made by himself and other officers, and in this connection stated that at the very time of said search a man by the name of Jones was in the house of defendant, and that Jones "had a full quart of gin in his pocket," etc. This testimony was allowed over the objection of the defendant, and exception was duly reserved to the ruling of the court. This testimony was clearly admissible, as it was a part of the res gestae; therefore there is no merit in the contention of the defendant and the ruling of the court in this...

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21 cases
  • Banks v. State
    • United States
    • Alabama Court of Appeals
    • 30 Junio 1921
    ...... 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 ......
  • State v. Chin Gim
    • United States
    • Supreme Court of Nevada
    • 4 Abril 1924
    ...... hopes or fears.". . . .          This. 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. Later, in 1921,. the Court of Appeals in Banks v. State, 18 Ala. App. 376, 93 So. 293, 24 A. L. R. 1359, reached the conclusion. that the ruling of the Shields Case was repugnant to and. inconsistent with the prohibitions of the Alabama. Constitution ......
  • Jenkins v. State, 4 Div. 754
    • United States
    • Alabama Court of Criminal Appeals
    • 20 Noviembre 1979
    ...matter was presented which was not dealt with on trial; there having been ample evidence to support verdict and conviction. Bell v. State, 16 Ala.App. 36, 75 So. 181. . . . " See: Mount v. State, 32 Ala.App. 235, 24 So.2d 142 (1945); Frost v. State, 30 Ala.App. 611, 11 So.2d 393 (1943); § 1......
  • Peek v. State
    • United States
    • Alabama Court of Appeals
    • 26 Julio 1923
    ...... officers found at the time of the search and seizure,. although possession of the articles may have been acquired. without the aid of a search warrant. Shields v. State, 104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17;. Banks v. State, 207 Ala. 179, 93 So. 393; Bell. v. State, 16 Ala. App. 36, 75 So. 181. . . The. witness Lyons testified without objection that they found a. malt mill at the time of the search. Evidence that there was. malt in the mill was competent, as tending to show that the. mill was to be used for the purpose of ......
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