Brandies v. State

• Decision Date: 15 October 1968
• Docket Number: 3 Div. 248
• Citation: 219 So.2d 404,44 Ala.App. 648
• Parties: v. STATE.
• Court: Alabama Court of Appeals

Page 404

219 So.2d 404

44 Ala.App. 648

v. STATE.

3 Div. 248.

Court of Appeals of Alabama.

Oct. 15, 1968.

Rehearing Denied Nov. 26, 1968.

L. H. Walden, Montgomery, for appellant.

MacDonald Gallion, Atty. Gen., and Marlin Mooneyham, Asst. Atty. Gen., for the State.

CATES, Judge.

The appellant was indicted July 14, 1966, under a single count charging him with possession, etc., of '108 pills and capsules of barbiturates And demoral, a narcotic drug, contrary to the provisions of Chapter 8 of Title 22 of the 1940 Code * * * as amended.' (Italics added.)

The State proved both butisol sodium and 'demoral' at the time the police came into his home. The proof of the pharmaceutical composition of both drugs came from the same witness, Robert Finley, an Assistant State Toxicologist.

The jury brought in a general verdict. Judgment was entered accordingly and appellant was sentenced to two years in the penitentiary.

I.

The first violation of the barbiturate law is a misdemeanor. Ramsey v. State, 43 Ala.App. 617, 197 So.2d 763, decided February 21, 1967. Possession of 'demoral' or 'isonipecaine' is denounced by Code 1940, T. 22, § 255(b), as amended, on first conviction is punishable by not less than two or more than ten years in the penitentiary. Hence, this latter crime is a felony.

It is axiomatic under our cases that felonies and misdemeanors are not to be joined in the same indictment, let alone in the same count. James v. State, 104 Ala. 20, 16 So. 94. Code 1940, T. 15, § 249, ¹ manifestly does not apply here.

The appellant did not demur to the indictment; but he did (a) move to exclude the State's evidence, (b) asked in writing for the directed verdict, ² and (c) moved for a new trial. We consider the refusal of charge 15 was error.

We quote from Cagle v. State, 151 Ala. 84, 44 So. 381:

'Amongst the many charges asked by the defendant and refused by the court was the general affirmative charge with hypothesis. We have been that the indictment will not support a conviction, and therefore the court erred in refusing this charge.

'Reversed and remanded.'

From Shelton v. State, 143 Ala. 98, 39 So. 377 (often yoked with Cagle, supra), we also quote:

'* * * As it (count 2 of the indictment) charged no offense, the defendant in his request for instructions had the right to ignore it altogether, since it would not support a judgment of conviction. This being true, he had the right to have the court instruct the jury that they could not convict him under that count. The third written charge requested by defendant should have been given.'

The third written charge in Shelton was:

'3. The Court charges the jury that, if they believe the evidence in this case, they cannot convict the defendant under the second count in the indictment.'

See 17 A.L.R. at 929, where cases on our statute ³ on charging on the effect of the evidence are collated; also 23A C.J.S. Criminal Law § 1145(2), n. 44, p. 361. Though reversed on another point, the opinion of Samford, J., in Coker v. State, 18 Ala.App. 550, 93 So. 384, seems sound in putting a request for the affirmative charge vis-a-vis a void count in an indictment on the same footing as a motion in arrest of judgment.

This latter manoeuvre in Alabama has been recognized as a 'delayed' demurrer. If it is permissible after verdict to raise the question of such a duplicitous averment, ⁴ then, a fortiori, why should not an earlier motion (which is in essence to dispense with the further time and cost of judge and jury) be more efficacious and hence more commendable?

II.

Because of reversal on the foregoing point, in the event of a new indictment, we consider it is here needful to comment on the propriety of proof aliunde to support a search warrant.

Here the warrant issued by the Presiding Judge of the Municipal Court of the City of Montgomery, Hon. D. Eugene Loe, was supported by the following affidavit:

'Before me, D. Eugene Loe, Recorder of the City of Montgomery, Ala., personally appeared James G. Ward, Montgomery Police Department, who being duly sworn, deposes and says that he has probable cause to believe and does believe that illicit narcotics and/or illicit narcotics derivatives and/or synthetic equivalents are being contained in, illegally, the residence of Robert L. Brandies, alias 'PeeWee' Brandies, and Kathleen Brandies, at 814 Clayton St., Montgomery, Ala., such conclusion being the result of having been informed by reliable persons, whose information in the past has been reliable, and from the observation, without trespassing, of activities in and about the said premises which would cause a reasonable person to believe that illicit narcotics or illicit narcotics derivatives, are contained in the said premises.

'Sworn to and subscribed before me this the 23 day of April, 1966.

'/s/ D. Eugene Loe

'/s/ James G. Ward'

Arizona has a statutory scheme for the issuance of search warrants similar to ours. In State v. McMann, 3 Ariz.App. 111, 412 P.2d 286, we find:

'Affidavits which are purely conclusory ordinarily do not place the magistrate in a better position than the affiant insofar as the determination of the existence of probable cause is concerned. To perform his function in a detached fashion, the magistrate must be informed of 'some of the underlying circumstances' supporting the affiant's conclusions. * * *'

Apparently conceding that this application was too conclusory, the State put Judge Loe on the stand and proved viva voce that one of the two officers who came before him gave detailed facts. The substance was that the informer came out of Brandies's house and told them that he had just got a shot of dope from Brandies.

As to search warrants, Code 1940, T. 15, § 103, provides:

' § 103. The magistrate, before issuing the warrant, must examine on oath the complainant and any witness he may produce, and take their depositions in writing, and cause them to be subscribed by the persons making them; and the depositions must set forth facts tending to establish the grounds of the application, Or probable cause for believing that they exist.' (Italics added.)

Of a comparable section (§ 214, T. 29) of the liquor law, this court cited Edmunds, State ex rel. Dedge, 199 Ala. 555, 74 So. 965, and held that when the petitory affidavit is sufficient then the failure of the magistrate to take the depositions of complainant and other witnesses does not vitiate the search warrant. Porch v. State, 38 Ala.App. 565, 89 So.2d 694.

Since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, with its rule of exclusion, the propriety of the issuance of a search warrant is a due process question.

In Clenney v. State, 281 Ala. 9, 198 So.2d 293, our Supreme Court stated:

'The rule seems to be that the magistrate must have sufficient evidence to support a finding of probable cause. Apparently, it is not necessary that all the evidence before the magistrate shall be stated in the affidavit, but, since the Court of Appeals holds the affidavit insufficient on its face, we limit consideration to matters stated in the affidavit.

'The affiant must state evidence, other than hearsay, to justify a conclusion that the article to be searched for is where he says it is. The affiant must state evidence, other than hearsay, to justify a conclusion that the hearsay is reliable. Such seems to be the rule stated in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.'

In Aguilar v. Texas, supra, the court pretermitted consideration of whether or not a search warrant could be issued on sworn testimony before the magistrate ore tenus. Hence, in footnote 1, 378 U.S., at page 109, 84 S.Ct., at page 1511, we find the following:

'The record does not reveal, nor is it claimed, that any other information was brought to the attention of the Justice of the Peace. It is elementary that in passing on the validity of a warrant, the reviewing court may consider Only information brought to the magistrate's attention. Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 79 C.J.S. Searches and Seizures § 74, p. 872 (collecting cases). In Giordenello, the Government pointed out that the officer who obtained the warrant 'had kept petitioner under surveillance for about one month prior to the arrest.' The Court of course ignored this evidence, since it had not been brought to the magistrate's attention. The fact that the police may have kept petitioner's house under surveillance is thus completely irrelevant in this case, for, in applying for the warrant, the police did not mention any surveillance. Moreover, there is no evidence in the record that a surveillance was actually set up on petitioner's house. Officer Strickland merely testified that 'we Wanted to set up surveillance on the house.' If the fact and results of such a surveillance had been appropriately presented to the magistrate, this would, of course, present an entirely different case.

Accordingly, it is not clear that the Fourteenth Amendment of the Constitution of the United States requires that the evidence before the issuing magistrate be contemporaneously reduced to writing. However, § 103 of Title 15, supra, does require such memorialization. In this connection, we consider that the depositions called for in said § 103 At the very least must be ex parte affidavits. In Accident Indemnity Ins. Co. v. Feely, 279 Ala. 74, 181 So.2d 889, our Supreme Court, per Merrill, J., undertook to define depositions as follows:

'The word 'deposition' in legal terminology is the testimony of a witness, taken in writing, under oath or affirmation, before some judicial officer, in answer to questions or interrogatories, State ex rel. Nichols v. Killoren, Mo.App., 285 S.W.2d 38; and being a generic term, embracing all evidence verified by oath, it thus includes affidavits. Baker v. Magrath, 106 Ga. 419, 32 S.E. 370. * * *'

The Edmunds case, supra, is predicated upon the affidavit...