Peek v. State

• Decision Date: 26 July 1923
• Docket Number: 7 Div. 811.
• Citation: 19 Ala.App. 370,97 So. 374
• Parties: PEEK v. STATE.
• Court: Alabama Court of Appeals

97 So. 374

19 Ala.App. 370

PEEK v. STATE.

7 Div. 811.

Court of Appeals of Alabama

July 26, 1923

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Walter Peek was convicted of violating the prohibition law, and appeals. Affirmed.

Isbell & Scott, of Ft. Payne, for appellant.

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

FOSTER, J.

The first count in the indictment charged the defendant with distilling, and the second count with having in his possession a still, etc. The jury returned a general verdict of guilt.

There was no error in sustaining the demurrer to defendant's plea of former conviction of the same offense in the federal court. This question has been many times decided by this court. Gilbert v. State (Ala. App.) 95 So. 502; Gemlin v. State (Ala. App.) 95 So. 505; Smith v State (Ala. App.) 96 So. 375; Tribble v. State (Ala App.) 95 So. 827.

An act approved January 25, 1919 (Acts 1919, p. 12, § 12), declares property used in the manufacture of prohibited liquors "contraband, and no person, firm or corporation or association of persons shall have any property rights in or to the same," etc. The act also makes it the duty of the officers of the law to destroy such property. The evidence showed a "malt mill" and a "coil" taken from defendant's home, that the malt mill had been misplaced and could not be produced on the trial, and that the coil was taken by a federal officer and the state's officers had no control over it. In the circumstances, the property could not be returned to the defendant, and the motion to have the property seized returned to him was properly overruled.

It was competent for the witness to testify what articles the officers found at the time of the search and seizure although possession of the articles may have been acquired without the aid of a search warrant. Shields v State, 104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17; Banks v. State, 207 Ala. 179, 93 So. 393; Bell v. State, 16 Ala. App. 36, 75 So. 181.

The witness Lyons testified without objection that they found a malt mill at the time of the search. Evidence that there was malt in the mill was competent, as tending to show that the mill was to be used for the purpose of manufacturing prohibited liquors. Hopkins v. State, 18 Ala. App. 423, 93 So. 40.

It was competent to show by the witness Lyons that the officers had a search warrant, without the production of the warrant on the trial. The existence of the search warrant, rather than its contents, was the matter desired to be proved, and the written instrument was only a collateral incident to the matter in issue. The general rule requiring the production of the writing as the best evidence is not applicable in such cases. 4 Michie's Ala. Dig. p. 168, § 247.

The solicitor for the state in his argument said:

"These people out in the community with the defendant are his witnesses and are in sympathy with him."

That they lived in his community was in evidence; that they were in sympathy with him the solicitor could properly argue as an inference from the evidence.

"Every fact the testimony tends to prove, every...