Clements v. State

• Decision Date: 03 April 1923
• Docket Number: 7 Div. 899.
• Citation: 95 So. 831,19 Ala.App. 177
• Parties: CLEMENTS v. STATE.
• Court: Alabama Court of Appeals

95 So. 831

19 Ala.App. 177

CLEMENTS v. STATE.

7 Div. 899.

Court of Appeals of Alabama

April 3, 1923

Appeal from Circuit Court, Calhoun County; A. P. Agee, Judge.

W. E Clements was convicted of having prohibited liquors in his possession, and he appeals. Affirmed.

Merrill & Allen, of Anniston, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The following statement of facts contained in brief of counsel for appellant seems to be properly stated and is borne out by the record, to wit:

"The defendant was tried and convicted on a charge of having liquor in his possession. The testimony of the state tended to show that certain of the state's witnesses stopped the defendant in the road, searched his car, and found in his car a quart of whisky. The testimony of the state was to the effect that the officer making the search had a search warrant, which is set out on page 19 of the transcript. The testimony of the defendant tended to show that, if there was any whisky in the car, the defendant did not put it there, and did not know of its being there; that no search warrant was presented when the car was searched and that the officers stated that no search warrant was needed."

In argument of counsel it is insisted that the search warrant as set out in the record did not give any authority to the officers to make the search as the testimony shows that the same was made; that the search was therefore illegal, and the whisky found on such illegal search, and testimony relating thereto, should not have been admitted; and that the court erred in overruling defendant's objections thereto. It is also further insisted that the trial court committed reversible error in admitting in evidence the whisky procured by an illegal search, and in admitting testimony relating thereto.

In the case of Mary Banks v. State, 207 Ala. 179, 93 So 293, the writer expressed views in accord with the contention here made; but, as this court was without authority to overrule certain decisions of the Supreme Court in conflict, we certified the questions involved to the Supreme Court, and in response thereto that court expressed different views, upon authority of which it must now be held that the insistence here made cannot be sustained. See, also Ex parte Banks, 207 Ala. 503, 93 So. 472. In this latter case Justice Somerville, for the court, said: "1. A review of the advisory opinion written by Mr. Justice Thomas in this cause convinces us of the soundness and propriety of the conclusion therein reached, viz. the reaffirmance of the doctrine of Shields v. State, and of its harmony with constitutional limitations, whether state or federal.

"2. Notwithstanding the plausibility of the argument in favor of the second proposition, we are satisfied that the provision of the Eighteenth Amendment that 'the Congress and the several states shall have concurrent power to enforce this article by appropriate legislation,' cannot be intended as an abrogation of the distinctive rules of pleading, evidence, and practice prevailing in the several

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