Bennett v. State

• Decision Date: 12 January 1971
• Docket Number: 5 Div. 30
• Parties: Joe Corbett BENNETT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 570

245 So.2d 570

46 Ala.App. 535

Joe Corbett BENNETT v. STATE.

5 Div. 30.

Court of Criminal Appeals of Alabama.

Jan. 12, 1971.

Rehearing Denied March 2, 1971.

Maye & Melton, Opelika, for appellant.

MacDonald Gallion, Atty. Gen., and Jasper B. Roberts, Asst. Atty. Gen., for the State.

PRICE, Presiding Judge.

This is an appeal from a conviction for a violation of Title 22, Sec. 256, Code of Alabama 1940, with a penitentiary sentence of five years.

The evidence adduced by the state tends to show that on September 17, 1968, federal, state and county agents and investigators, armed with a search warrant, searched a house in Auburn, Alabama, which had been rented to defendant since the fall of 1966. Various amounts of vegetable matter determined to be marijuana by the state toxicologist, were found in two bedrooms, the livingroom and outside the house in a flower bed inclosure. Defendant was not at home when the search was made.

The owner of the house testified both he and defendant used one room of the house for storage purposes.

Lieutenant Herman Chapman, an investigator for the State Department of Public Safety, testified he talked with defendant in the sheriff's office after his arrest. Defendant was warned of his right to remain silent; that any statement he made could be used against him in a court of law; that he had a right to have an attorney present and if he did not have money to employ an attorney the court would appoint one for him and no questions would be asked of him if he requested an attorney. No inducement, offer of reward or threats were used to obtain a statement. Defendant made an oral statement in which he stated he had been living alone in the house rented from Mr. Jones for about two years; that he was a senior student at Auburn University; that he had been growing marijuana in flower beds and in a patch behind the house for about ninety days; that he grew it for his own use and for experimental purposes, but that he had not sold or given any away; that he had pulled it up, hawled it away and burned it.

The evidence presented questions for the consideration of the jury and was sufficient to sustain the verdict. There was no error in the court's refusal of the affirmative charge nor in the overruling of the motion for a new trial on the ground of the insufficiency of the evidence.

The affidavit leading to the issuance of the search warrant reads in pertinent part:

'* * * there is now being concealed certain property namely marijuana, * * * which are being grown and possessed in violation of Title 22, Section 256, of the Code of Alabama * * *. And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: The undersigned has received information from a reliable informant that the informant knows that marijuana is being grown on the premises and that said informant has given the undersigned correct and reliable information in the past.

(Signature of Affiant) Jerry Popwell.'

On his voir dire examination Officer Popwell testified:

'I put testimony before Judge Whittelsey to the effect that Agent Jerry Ward and myself were at the accompanying residence, the house next door some, I guess thirty--twenty-five or thirty yards from this house and observed the outer portions of the house and what he identified to me as being marijuana. Now, as for me knowing personally it was marijuana, I don't.'

The affidavit is insufficient under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct 1509, 12 L.Ed.2d 723. But we are of opinion the testimony of Officer Popwell was sufficient to base a finding of probable cause. Oliver v. State, Ala.Crim.App., 46 Ala.App. 118, 238 So.2d 916.

In its oral charge the court instructed the jury:

'There is a question here of an alleged confession of this defendant. One of the lawyers for the defendant says that he was carried downstairs by two big strapping sheriffs or officers. You are not to determine, gentlemen, whether or not that confession was Valid or invalid. That's Up to the court to determine that. It is A matter of law. And the court has held that confession was admissible. You can consider the confession along with all the evidence in the case. The jury considers the voluntariness as affecting the weight or credibility of the Confession. In other word, gentlemen of the jury, you consider all of the evidence in the case. You don't consider whether or not it is improper evidence because the court determines whether it is proper evidence or improper evidence. Any evidence that comes to you from this stand has been...