Yancey v. State, 6 Div. 224

• Decision Date: 15 August 1972
• Docket Number: 6 Div. 224
• Citation: 48 Ala.App. 476,265 So.2d 918
• Parties: Alfonzo YANCEY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 918

265 So.2d 918

48 Ala.App. 476

Alfonzo YANCEY, alias v. STATE.

6 Div. 224.

Court of Criminal Appeals of Alabama.

Aug. 15, 1972.

William T. Kominos, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

PER CURIAM.

This appeal is from a conviction of robbery with sentence of ten (10) years imprisonment fixed by the jury and imposed by the court.

The appellant was arrested on October 25, 1969, by two Birmingham Police Officers, after receiving a call on the radio of the police car from a superior officer to make the arrest. The charge placed against him was robbery and 'A.I.M.'. The officer who ordered the appellant arrested did so predicated upon an anonymous phone call, that the appellant was connected with the robbery of state witness, Stollenwerk, on the night of October 15, 1969. The arresting officers had no warrant for appellant's arrest and he was held until October 28, at which time he was released. During the time he was held in jail, photographs were taken and were later shown to the victim, Stollenwerk, who identified the appellant as one of the participants who attacked and robbed him as heretofore mentioned. In the incident referred to, the witness, Stollenwerk, was not only robbed of his money, some $73.00, but severely cut by his assailants.

After the identification of the appellant, he was again arrested, apparently under the authority of a warrant sworn out by either Detective Vance or Whitehouse.

The appellant contends in brief that since his first arrest and detention was without authority of law and in violation of Title 15, Section 154, that his motion to exclude, in the following language:

'And I move that any evidence presented in this trial after the events that took place after the--arrest on the 25th be excluded, because the arrest, itself, was void and without probable cause, and anything that was--that the officers were able to get--any photographs, or any identification--after a void or null arrest should be excluded.'

should have been granted by the Court. The motion was overruled and the appellant reserved an exception.

Granting that the first arrest of the appellant was invalid, because not based upon probable cause, the second arrest, whether under warrant or without warrant, there was, under the evidence, probable cause, the identification of the appellant having been in the meantime made by the victim, Stollenwerk, when shown the photographs by the police officers.

But, be this as it may, we are of the opinion that an unlawful arrest is not bar to a prosecution of a subsequent indictment for the same charge.

This principle was dealt with in the case of Albrecht v. United States, 273 U.S. 1, 8, 47 S.Ct. 250, 252, 71 L.Ed. 505, in the following language:

'The invalidity of the warrant is not comparable to the invalidity of an indictment. A person may not be punished for a crime without a formal and sufficient accusation even if he voluntarily submits to the jurisdiction of the court. * * * But a false arrest does not necessarily deprive the court of jurisdiction of the proceeding in which it was made.' * * *

See United States v. Hughes, 311 F.2d 845 (3rd Circuit 1962); Kelly v. Griffin, 241 U.S. 6, 36 S.Ct. 487, 60 L.Ed. 861; Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421; Stallings v. Splain, 253 U.S. 339, 40 S.Ct. 537, 64 L.Ed. 940.

We have found no case exactly in point in Alabama, but we think the case of Braden v. State, 45 Ala.App. 186, 227 So.2d 816, sheds some light upon this matter. This case deals with the failure of the defendant to be accorded a preliminary hearing and he sought to take advantage of this situation upon the main trial.

The Court, in speaking on the question of the effect of an error in the preliminary proceedings upon the main trial said:

'Upon indictment by a properly chosen grand jury, then a determination of there being probable cause has been made so as to hold the accused to answer to a petty jury. Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283.'

We do not...