Robertson v. City of Montgomery

• Decision Date: 15 November 1917
• Docket Number: 3 Div. 311
• Citation: 77 So. 724,201 Ala. 198
• Parties: ROBERTSON v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

77 So. 724

201 Ala. 198

ROBERTSON v. CITY OF MONTGOMERY.

3 Div. 311

Supreme Court of Alabama

November 15, 1917

On Rehearing, Jan. 24, 1918

On Rehearing.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Russell Robertson was convicted in the municipal court of violating an ordinance of the city of Montgomery by having in his possession a quart or less of whisky in receptacles of capacities less than a quart, and, being again convicted on appeal to the circuit court, he again appeals. Transferred from Court of Appeals under section 6, p. 450, Acts 1911 Affirmed.

Brassell & Brassell, of Montgomery, for appellant.

Andrews & Rives, of Montgomery, for appellee.

McCLELLAN J.

The appellant was convicted, in the municipal court, of having in his possession a quart or less of whisky in receptacles of capacities less than a quart. He appealed to the circuit court, and was there again adjudged guilty.

The mere possession of a quart or less of whisky in more than one receptacle is an offense, and is forbidden by the laws of the state. State ex rel. v. Southern Express Co., 75 So 343, 348; Gen.Acts 1915, p. 555, § 5. In addition to the reference in section 5 of the cited act to the rule of evidence predicated of the mere possession of a quart or less of the prohibited liquors described in the act while contained in more than one receptacle of a capacity below a quart, that section of the act also expressly declares such possession to be unlawful. Section 15 of the act prescribes penalties for offending its mandates. It is manifest that the ordinance of the city of Montgomery, forbidding and penalizing a like possession of prohibited liquors, is entirely consistent with the state laws on the subject, and does not infract section 89 of the Constitution, which inhibits the Legislature from undertaking to authorize municipalities to ordain to an effect inconsistent with the general laws of the state.

Evidence of an offense, state or municipal, that is obtained by a search which was illegal and unauthorized is admissible to establish guilt upon the person searched. Shields v. State, 104 Ala. 35, 16 So. 85, 53 Am.St.Rep. 17; Pope v. State, 168 Ala. 23, 40, 53 So. 292. Of course, the discovery of the offense and of the offender, even through such illegal means, cannot exonerate the offender from prosecution or conviction.

It is urged for the appellant that the circuit court erred in overruling his demurrer to a complaint. There is in the record no ruling on the appellant's demurrer to a complaint. The presumption is that the demurrer was not insisted on; no ruling on it appearing. Cent. of Ga.Ry. Co. v. Ashley, 159 Ala. 145, 152, 153, 48 So. 981.

There is no error shown by the record. The judgment is affirmed.

Affirmed.

ANDERSON, C.J., and SAYRE and GARDNER, JJ., concur.

On Rehearing.

McCLELLAN J.

There was an affidavit (complaint) upon which the appellant was tried in the recorder's court, charging the offense of which the appellant was convicted in the circuit court. Along with the transcript from the municipal court, this complaint was sent to the circuit court in consequence of the defendant's appeal thereto. In the circuit court ...