Matthews v. State

• Decision Date: 18 August 1964
• Docket Number: 1 Div. 913
• Citation: 42 Ala.App. 406,166 So.2d 883
• Parties: Joe MATTHEWS v. STATE.
• Court: Alabama Court of Appeals

Page 883

166 So.2d 883

42 Ala.App. 406

Joe MATTHEWS v. STATE.

1 Div. 913.

Court of Appeals of Alabama.

Aug. 18, 1964.

Kilborn, Darby & Kilborn, Mobile, for appellant.

Richmond M. Flowers, Atty. Gen., and John G. Bookout, Asst. Atty. Gen., for the State.

JOHNSON, Judge.

The appellant, Joe Matthews, stands convicted in the Circuit Court of Mobile County, Alabama, of buying, receiving or concealing seventy-six dozen cotton towels of the aggregate value of $170.00, the personal property of C. J. Gayfer and Company, a corporation. His punishment was fixed by the court at five years in the penitentiary.

The facts introduced at the trial below disclose that the appellant was arrested at one of his business establishments where four Mobile Police Officers had gone to investigate an allegedly stolen water heater. With permission of the appellant's employees, the officers looked through the store and discovered a water heater answering the description of the stolen one in a yard adjoining the appellant's business. Upon defendant's return to his place of business, he was told that he was under arrest and was taken into custody by the arresting officers.

As presented by a motion to suppress the evidence and testimony adduced at the trial of this cause, the events that occurred immediately subsequent to the arrest of the appellant are in much conflict. Detective Ralph Jordan of the Mobile Police Department testified that upon arresting the defendant, he 'asked Joe if we could look around and he took me over to his house and opened the door himself, freely and voluntarily'. This house was a rooming house owned and resided in by appellant and located across the street from the store.

At the hearing on the motion to suppress the evidence, much testimony was elicited as to whether the appellant voluntarily consented to open the rooming house without any duress or coercion applied by the officers. The defendant testified that the officers forced him to let them in. He said, 'He was the law and I thought I was doing right. If he tell me to do something to go do it.'

If the search of appellant's rooming house were illegal, the case of towels discovered as a result of the search would have been inadmissible at the trial of the cause. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

Under the appellant's contention that the search of the rooming house was illegal, the following Federal cases have been closely considered: Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649; Cohen v. Norris, (C.C.A., 9th) 300 F.2d 24; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Weaver v. United States, (C.C.A., 5th) 295 F.2d 360; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Higgins v. United States, 209 F.2d 819; United States v. Gregory, D.C., 204 F.Supp. 884.

We feel, however, that the trial judge had the better opportunity to determine the circumstances surrounding the search of the defendant's rooming house by hearing and observing the demeanor of the witnesses at the hearing on the motion to suppress the evidence. His determination that the appellant freely, without coercion or duress, consented to the search of the rooming house will not here be overturned. The fruit of a search performed with the consent of the defendant is admissible in the trial of the cause and the motion to suppress the evidence was, therefore, properly overruled. Mead v. State, 42 Ala.App. 338, 164 So.2d 505; Frye v. United States, 9 Cir., 315 F.2d 491.

Appellant's motion to quash the indictment based on the appellant's being detained in jail from 6:30 P.M. on June 4, 1960, until 10:40 A.M. on June 5, 1960, on a charge of 'investigation' was properly overruled. The alleged improper detention of the prisoner was not shown to have caused him to have been prejudiced.

Appellant's attorney strongly argues that the corpus delicti was not sufficiently established in that the State's evidence failed to prove that the goods found in the appellant's possession were stolen from the alleged owner. The State introduced extensive testimony to the effect that the towels had been received by C. J. Gayfer and Company in the normal course of business, stored in their warehouse and no record of sale had...