Gibbs v. State

• Decision Date: 29 October 1953
• Docket Number: 7 Div. 76
• Citation: 259 Ala. 561,67 So.2d 836
• Parties: GIBBS v. STATE.
• Court: Alabama Supreme Court

Page 836

67 So.2d 836

259 Ala. 561

GIBBS v. STATE.

7 Div. 76.

Supreme Court of Alabama.

Oct. 29, 1953.

Wales W. Wallace, Jr., Columbiana, and C. W. McKay, Jr., Sylacauga, for appellant.

Si Garrett, Atty. Gen., and Maury D. Smith, Asst. Atty. Gen., for the state.

GOODWYN, Justice.

Appeal from a decree condemning appellant's Chevrolet pickup truck under the provisions of Section 247 et seq., Tit. 29, Code 1940, as amended. The bill of complaint alleges that appellant used this truck, or had it loaded for the purpose of using it, for the illegal conveying of prohibited liquors and beverages from one point in the state to another point in Talladega County, a 'dry county.'

The facts, in substance, are as follows: Appellant lives on Route 3 between Talladega and Sylacauga, in Talladega County. About 4 o'clock in the afternoon on the day the truck was seized, one Talley and one Hays, together with Talley's seven-year old son, came in a taxi to appellant's home. It seems that Hays had, before that time, asked appellant to get a cow for him, and he wanted to inquire whether the cow had been obtained. On arrival they saw appellant's brother, Thad, and asked to see appellant. Appellant was in the house lying down, and was dressed in an undershirt and with his pants on. He came to the back door, then returned inside the house and put on his shirt. In the meantime, Talley and Hays went to the truck here involved and seated themselves in the cab. The truck was parked in the driveway beside the house under a shade tree. It was facing the house and about 12 feet from it. In about three minutes, appellant came out of the house, got in the cab of the truck with Talley and Hays, and seated himself on the driver's side. After sitting there talking for ten or fifteen minutes, five law enforcement officers arrived with a warrant to search appellant's premises for prohibited liquors and beverages. Two of the officers entered the house. One of the officers came to the truck and stood there while the other two made a search outside the house. The two officers who entered the house found on the bathroom floor a one-gallon jug which contained drainings of 'moonshine' whiskey. They testified that 'the screw cap was on the floor beside the jug' and that 'the trap in the commode contained a liquid which smelled strongly as pure 'moonshine' whiskey.' The officers outside found about 3 1/2 gallons of whiskey in a 5-gallon jug located in a cotton patch about ten or fifteen steps from the rear of the truck. They also found a 5-gallon jug of whiskey behind an outhouse about 40 feet in front of the truck. While the search was going on, the three men remained in the truck. A search was made of the truck and no whiskey was found. However, when appellant got out of the truck, the officers took a pint of whiskey off of his person. The evidence is in conflict as to whether this bottle was in appellant's pocket or in his hand. They also took from Talley a pint bottle partially filled with whiskey. It was then that the officers seized the truck. The evidence is uncontradicted that the truck had not moved. It is not clear whether the ignition key was in the car. All of the whiskey found was 'moonshine,' and none of it bore stamps of the Alabama Alcoholic Beverages Control Board. Mr. Talley was called as a witness for the state and testified that he had been drinking prior to arrival at appellant's home, but did not drink any while there. He further testified that he did not see appellant take anything to drink. It is not clear where Mr. Talley's seven-year-old son was during all of this time, but there is evidence that he went to the well with Thad to get water. The evidence is without dispute that appellant had had an operation on his arm about a week before; that he had remained in the hospital three or four days, and had been at home the rest of the time recuperating; that he had not driven the truck since his operation up to the time of his arrest; that after his arrest, he drove it to Talladega when accompanied by one of the arresting officers; and that he had to have medical attention for his arm on arrival at Talladega because of such driving.

Section 247, Tit. 29, as amended by Act No. 129, appvd. July 17, 1947, Gen. Acts 1947, p. 39, supra, insofar as here pertinent, is as follows:

'All conveyances and vehicles of transportation of any kind, * * * which have been or are used for the illegal conveying of any prohibited liquors, or beverages, into this state, or from one point in the state to another point within the state, * * * shall be contraband and shall be forfeited to the state of Alabama, * * *. And, in order to condemn and confiscate any of the above mentioned vehicles or animals, it shall not be necessary for the state to show any actual movement of said vehicles or animals while loaded with any of said prohibited liquors or beverages. Provided, however, that if said prohibited liquors or beverages shall have been purchased through the state liquor stores, or shall bear the stamp of the Alabama alcoholic beverages control board, no such conveyance, vehicle or animal shall be confiscated or forfeited unless the court shall be convinced from the evidence that said prohibited liquors or beverages were being transported for the purpose of re-sale, contrary to law. That the owner or operator of said vehicle has a reputation of being a seller of prohibited liquors shall be prima facie evidence that such liquors or beverages were being transported for resale.'

It is clear from the evidence that the whiskey with which we are here concerned was not purchased through the state liquor stores and did not bear stamps of the Alabama Alcoholic Beverages Control Board. Therefore, the last two sentences of Section 247, as amended, supra, which were added by the 1947 Amendment, have no relevancy to this case. As stated in Deerman v. State, 253 Ala. 632, 634, 46 So.2d 410, 412, this part...