Jones v. State, 58 So. 1011

Jones v. State

58 So. 1011 | Ala. Ct. App. | 1912

WALKER, P. J.

The affidavit upon which the search warrant was issued showed the existence of the ground for the issuance of such process which is stated in paragraph “a” of subdivision 6 of section 22 of the act “to *162further suppress the evils of intemperance,” etc., approved August 25, 1909.—Acts Ala. Sp. Sess. 1909, 63, 76. The objections raised by the defendant’s motion to quash the search warrant and by his demurrer to the affidavit and complaint were properly disposed of, as is shown by what was said in the opinion rendered in the case of Toole v. State, 170 Ala. 43, 54 South. 195.

The mandate of the writ that the officer to whom it was addressed “make immediate search” in the house or premises mentioned “in the daytime, or any time the place is open,” was in substantial conformity with the requirements of subdivisions 4 and 5 of section 22 of the act above mentioned. The evidence showed that the writ Avas executed in the daytime, by forcing an entrance through a AvindoAV into the house mentioned, Avhen it Avas unoccupied by its proprietor or any other person. The authority conferred on the officer, by section 7765 of the Code, “to break open any door or windoAV of a house, or any part of a house, or anything therein, if, after notice of his authority and purpose, he is refused amittanee,” is not to be construed as prohibiting the forcing of an entrance into a house ordered to be searched, which, at the time of the execution of the Avrit, is not occupied by any human being, or as requiring the officer to give notice of his authority and purpose, Avhen there is no one about the premises to receive such notice, or to permit or refuse admittance. Obedience to this provision prevents an unnecessary use of force, if there is some one present to Avhom the officer may give notice of his authority and purpose, and Avho may permit admittance to the house or place to be searched. The evidence as to the seizure under the Avrit Avas not subject to objection on the ground that it shoAved that the seizure Avas illegally and wrongfully made.

*163The hill of exceptions does not set out any written charge requested hy the defendant, nor disclose the action of the court in reference to any charge or request to charge. No ruling of the court on any request of the defendant for an instruction to the jury is presentéd for review.

Affirmed.