Yancey v. State, 6 Div. 224

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: PER CURIAM; The foregoing opinion was prepared by W. J. HARALSON
• Citation: 48 Ala.App. 476,265 So.2d 918
• Parties: Alfonzo YANCEY, alias v. STATE.
• Decision Date: 15 August 1972
• Docket Number: 6 Div. 224

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.

[48 Ala.App. 477] William T. Kominos, Birmingham, for appellant.

Page 919

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 [48 Ala.App. 478] 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...