Effie KELLEY, alias v. STATE
3 Div. 297
Court of Criminal Appeals of Alabama
Feb. 18, 1975
On Rehearing April 1, 1976.
316 So.2d 233
“MR. LESTER: I would like to respectfully reserve an exception, Your Honor.”
Appellant now assigns as the only error, the court‘s ruling on this motion and argues that Green‘s cоnduct might have influenced the jury.
In each of the cases urged in support of appellant‘s contention the facts were distinguishable from those before us.
This court in Williams v. State, 26 Ala. App. 531, 163 So. 663, had before it a similar situation and reasoned:
“Another insistence of defendant is that one of thе jurors rode to town on the morning of the trial with a kinsman of the dead man. It transpired that one Newton and Earnest Fulks had a puncture and that Earl Springer, who was afterwards selected as one of the jurors to try this case, came by in his car, picked them up, and brought them on to town, and that no conversation took place between them as to the case against the Williams‘. These questions were carefully and fully investigated by the trial court, and we see no reason to disturb his finding.”
In the case at bar nothing was presentеd showing that any of the veniremen Green spoke to were chosen for the jury empanelled to hear the appellant‘s case. Further, the court‘s timely inquiry indicated Green‘s conversation was confined to “catfishing” and not to any facts relating to the crime charged.
It is our judgment that the court sufficiently invеstigated the incident and we will not disturb his findings. Williams v. State, supra.
Much is left to the court‘s discretion in such matters. McGuire v. State, 239 Ala. 315, 194 So. 815.
Denial of appellant‘s motion to exclude State‘s evidencе was proper. Young v. State, 283 Ala. 676, 220 So.2d 843.
We have searched the record and did not find any error.
Affirmed.
TYSON, HARRIS and BOOKOUT, JJ., concur.
CATES, P. J., not sitting.
William J. Baxley, Atty. Gen., and Eriс A. Bowen, Asst. Atty. Gen., for the State, appellee.
CATES, Presiding Judge.
Affirmed.
All the judges concur.
ON REHEARING
CATES, Presiding Judge.
Buying, etc., stolen goods: sentence, three years in thе penitentiary.
Originally we affirmed the judgment below. However, in her application for rehearing aрpellant points out—without contradiction by the State—that the search warrants used to retrieve thе stolen copper from her home were not signed by the municipal judge.
There is no common law аuthorizing search warrants. Statutes authorizing searches are strictly construed against the prosecutiоn in favor of the liberty of the citizen. Commonwealth v. Monosson, 351 Mass. 327, 221 N.E.2d 220; 79 C.J.S. Searches and Seizures § 7.
Our Legislature has in
“A search warrant is an order in writing in the name of the state, signed by a magistrate, directed tо the sheriff, or to any constable of the county, commanding him to search for personal property, and bring it before the magistrate.”
(Italics added).
Often rules relating to arrest warrants parallel those applying to searches and vice versa. Significantly unsigned arrest warrants have been held void. Oates v. Bullock, 136 Ala. 537, 33 So. 835 (warrant utterly void).
Specifically as to unsigned search warrants we have noted Wilson v. Commonwealth, 211 Ky. 709, 277 S.W. 1019; Byrd v. Commonwealth (Ky.), 261 S.W.2d 437; Turner v. Commonwealth (Ky.), 328 S.W.2d 413, and State v. Cochrane, 84 S.D. 527, 173 N.W.2d 495.
Since the search warrant was not signed by the municipal judge, it is our opinion that it was void on its face and any search and seizure made thereunder was un
The constitutional right of an individual to be secure in person and effects from an unreasonable sеarch and seizure may be waived provided it is done voluntarily. A distinction is recognized between submission to аpparent authority of an officer acting under a warrant,1 and unqualified consent. 68 Am.Jur.2d, Searches аnd Seizures, § 47. The intent to waive the constitutional immunity must be positively established and the burden of proof is upon the party alleging the waiver.
In Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L. Ed.2d 171, we find:
“* * * We find that the erroneous admission of this unconstitutionally obtained evidence at this petitioner‘s trial was prejudicial; therefore, the error was not harmless, and the conviction must be reversed. We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained оf. The question is whether there is a reasonable possibility that the evidence complained of might hаve contributed to the conviction.”
Accordingly, the judgment below is reversed and the cause remandеd for a new trial.
Application granted.
Reversed and remanded.
All the Judges concur.
Notes
“The issue thus presented is whether a search can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has assertеd that he possesses a warrant. We hold that there can be no consent under such circumstances.
“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has thе burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing nо more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity оf the warrant, or fails to show that there was, in fact, any warrant at all.
“When a law enforcement offiсer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.”