Cheek v. State
| Decision Date | 19 December 1911 |
| Citation | 57 So. 108,3 Ala.App. 646 |
| Parties | CHEEK v. STATE EX REL. METCALF. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Jefferson County; E. C. Crowe, Judge.
Proceeding by the State of Alabama, on relation of W. L. Metcalf against F. C. Cheek, under Act Aug. 25, 1909 (General & Local Laws Sp. Sess. 1909, p. 74)§ 22. From the judgment, Cheek appeals. Reversed and remanded.
Burgin, Jenkins & Brown, for appellant.
R. C Brickell, Atty. Gen., and William L. Martin, Asst. Atty Gen., for the State.
DE GRAFFENRIED, J.
One Metcalf, on the 15th day of April, 1911, under the provisions of section 22 of an act of the Legislature approved August 25, 1909, and entitled "An act to further suppress the evils of intemperance," etc. (General and Local Acts Alabama, Special Session 1909, p. 74), made an affidavit before E. C. Crowe, judge of the circuit court of Jefferson county, charging that "Fred Cheek keeps a place where spirituous, vinous or malt liquors or beverages are kept for sale or otherwise disposed of contrary to law, known as the Olympian Hotel," etc. Thereupon a search warrant was issued by the said circuit judge of Jefferson county, and was placed in the hands of the sheriff of said county, authorizing him, in substance, to search the said Olympian Hotel for said liquors, and, if found therein to seize and hold them, subject to the orders of the court. Thereupon the sheriff and his deputies searched the Olympian Hotel and a building near it, known as the Wilson building; there being a passageway by means of two planks between the two buildings. The sheriff found and seized in the two buildings 23 dozen bottles of beer, 100 one-half pints of whisky, 1 quart of whisky, and two pints of whisky. Thereupon the said F. C. Cheek, as provided in subdivision 9 of section 22 of said act, filed a verified claim to 96 half pints of whisky and 20 dozen bottles of the beer so seized, and denied any claim to any of the balance of said liquors. He denied, in his said verified claim, that he kept a place where spirituous, vinous, or malt liquors or beverages were kept for sale, etc. On the issues made up under the direction of the court on the said verified claim of Cheek, this suit was tried.
1. In our opinion, the motion to quash the affidavit upon which the search warrant was issued was properly overruled. This question has been directly passed upon by the Supreme Court of Alabama. Toole v. State (Sup.) 54 So. 195.
2. As the affidavit upon which the writ of seizure issued alleged that appellant kept, at the Olympian Hotel, "a place where spirituous, vinous or malt liquors or beverages are kept for sale," it was competent for the state to show that such liquors had recently been sold there. The evidence, therefore, that the sheriff sent a negro with no whisky on his person into the hotel, and remained in front of and near the hotel until the negro returned with whisky, and that he gave the negro money, and directed him to go into the hotel and buy whisky and bring it to him, was relevant and competent as a circumstance to be considered by the jury, along with the other evidence in the case, in determining whether such liquors were in fact kept for sale in said hotel. Allison v. State, 1 Ala. App. 206, 55 So. 453.
3. Upon what theory as to its competency or relevancy the court proceeded when it permitted the state, against the objection of the appellant, to offer evidence tending to show that prior to the issuance of the search warrant, appellant had, more than once, been arrested for a violation of the prohibition laws, we are not able to understand. The appellant took the stand as a witness, and the state was thereby given an opportunity to impeach him. This the state did not attempt to do. As the question as to whether the Olympian Hotel was a place in which contraband liquors were kept for sale was before the jury, the state also had a right, by legal evidence, to show that such liquors were being sold or had recently been sold there; but the fact that the appellant had been arrested for violating the prohibition laws had no legal tendency whatever to show that said hotel was a place where such liquors were sold. A collateral crime may be evidence against a party, if it is connected with the...
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Oliver v. State, 6 Div. 12
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