Green v. State, 8 Div. 551

• Decision Date: 12 April 1955
• Docket Number: 8 Div. 551
• Citation: 79 So.2d 555,38 Ala.App. 189
• Parties: R. B. GREEN v. STATE.
• Court: Alabama Court of Appeals

Page 555

79 So.2d 555

38 Ala.App. 189

R. B. GREEN v. STATE.

8 Div. 551.

Court of Appeals of Alabama.

April 12, 1955.

H. T. Foster, Scottsboro, for appellant.

John Patterson, Atty. Gen., and J. Noel Baker, Asst. Atty. Gen., for the State.

HARWOOD, Judge.

A complaint was filed against this appellant in the Jackson County Court charging him with the possession of prohibited liqours.

Prior to trial the appellant filed (1) a plea challenging the legality of the court; (2) a motion for a continuance; (3) a motion to quash the venire; and (4) a motion to suppress the evidence.

All such pleadings were disposed of adversely to the appellant.

Plea to the legality and jurisdiction of the Jackson County Court.

This plea challenges the jurisdiction of the court to try the defendant on the grounds that the local act creating the court is unconstitutional in that notice of said act was not advertised for four consecutive weeks as required by Article 4, Sec. 106 of the Constitution of 1901.

The State's demurrer to the plea was sustained by the court.

Section 106, supra, provides that no local law shall be passed on any subject not enumerated in Section 104 of the Constitution except in reference to the time of holding courts, unless notice of the intention to apply therefor shall have been published at least once a week for four consecutive weeks in a newspaper published in the county, or if there is no newspaper so published, then by posting notice for four consecutive weeks at five different places in the county.

Since the plea fails to show that a newspaper was published in Jackson County in which the notice could have been published, and since it fails to show that the alternative method of publication was not had, the plea is defective and the demurrer thereto was properly sustained.

Motion for a continuance, and Motion to quash the venire.

Both of these motions are posited upon the allegation that on 13 October 1953 the court, on motion of the solicitor, quashed a venire theretofore drawn on 9 October 1953, without notice to the appellant.

Neither motion asserts fraud in the drawing of the present venire. No objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors. Section 46, Title 30, Code of Alabama 1940.

These two motions were therefore properly denied.

Motion to suppress the evidence.

The motion to suppress the evidence asserts that the evidence obtained in this case was by search of appellant's dwelling house, by a person not authorized by law to act.

A motion to suppress evidence has heretofore been a stranger to our jurisprudence for the reason that illegally obtained evidence is admissible under the doctrines of our cases. See Alabama Digest, Criminal Law, k395 for innumerable authorities.

However, by Act approved September 12, 1951, Section 210, Title 29, Code of Alabama 1940, Pocket Part, the statute relating to the issuance of search warrants for seizure of prohibited liquors was amended by adding the following provisions:

'No evidence obtained by means of an illegal search of the private dwelling of any person shall be admissible in any court in the prosecution of any person for violating any of the provisions of this title. A search is deemed illegal unless, (1) a valid search warrant has been issued in full compliance with law, including section 214 of this title, and warrant is executed according to law.'

In reference to a motion to suppress or exclude evidence, we find the following in 20 Am.Jur., Evidence, Sec. 396:

'In jurisdictions which adhere to the rule denying the admissibility of evidence procured by an illegal search and seizure, the accused must interpose a timely challenge to the validity of the seizure and the competency of the evidence. In the absence of express statutory remedy, a motion or an application to suppress evidence wrongfully seized by an illegal search and to direct its return to the applicant is the proper remedy; and upon such an application, the question of the illegality of the seizure is heard and determined as an independent issue. If, upon such application, the accused can show in fact that the evidence in question was secured by an unlawful search and...