Shaneyfelt v. StateShaneyfelt v. State
Appellant was convicted of transporting prohibited liquors in quantities of five gallons or mоre in violation of Tit. 29, § 187, Code of Alabama, 1940, as recompiled 1958. His sentence was fixed at two years in the penitentiary.
On the afternoon of December 10, 1966, State’s witnesses Duke and Platley, Deputies in the Sheriff’s Department of Etowah County, saw appellant driving a 1956 two-tone Chrysler automobile in Gadsden. They stopped him and talked with him briefly. No attempt to search him or his automobile was made and all parties proceeded on their way.. -The deputies drove to the Etowah County Courthouse where witness Arnold Platley claimed he received information from an informant who said that appellant would be coming through Gadsden shortly in the Chrysler automobile with a load of beer. The witness claimed that the informant hаd proven reliable and trustworthy on other occasions when he had given him accurаte information with regard to law violations.
The two deputies proceeded to thе home of the Clerk of the Circuit Court, Mr. Howard Kirby, and there secured a search warrant. Thеy then proceeded back to the Meighan Bridge in' East Gadsden, and within a short time apрellant came along and they fell in behind his car in the line of traffic. Appellant pulled over, stopped his car, got out, and started back toward them and, laughingly, said, “Well, the only difference between now and this afternoon, I’ve got it this time and I didn’t have it then.” He also stаted that he had a little beer. Appellant was not under arrest at the time he made these statements, and the officers claimed that they showed him the search warrant and hе did not resist the search of his automobile. The trunk of the automobile revealed thirty cаses of beer. He was then arrested and lodged .in the county j ail.
Appellant did not testify, nоr did he offer any testimony in his defense.
Appellant filed a motion for a new trial which was overruled by the court. In the motion, among other grounds, he claims that the court was in error in аdmitting, over objection, the affidavit and search warrant issued by the clerk of the court tо the officers. In the opinion of this Court there is merit in this contention.
Sufficient facts are nоt averred in the affidavit to meet the rule laid down in Clenney v. State,
The information received by the offiсers from the telephone call at the courthouse, together with the remark of thе appellant, made just before the search, “Well, the only difference betweеn now and this afternoon, I’ve got it this time and I didn’t have it then.” and the further statement that he had a littlе beer, gave the officers probable cause to search.
In Payton v. State, Ala.App.,
“Moreovеr, where the initial impetus for an arrest is an informer’s tip, information gathered by the arresting оfficers can be used to sustain a finding of probable cause.”
This additional information acquired at the time of the arrest must in some way however be corroborative of thе informer’s tip. Draper v. United States,
Appellant further complains of error in the refusаl of the court to give several charges in writing requested by him. The court did give forty written charges by the appellant and refused seven. Most of these charges deal with the law of rеasonable doubt and are thoroughly covered by the oral charge of the court or some of the charges given at the request of the appellant.
Charges 10 and 11 аre affirmative in nature and were properly refused by the court.
Charge 25 has been specifically condemned by this Court in Richardson v. State,
It is not necessary to set these charges; out individually since they are either faulty or fully covered by the given charges and the oral charge of the court when considered in connection with them.
We have сarefully read the record and see no reason to prolong this opinion. We find nо reversible error and the cause is, due to be affirmed.
The foregoing opinion was prepared by W. J. HARALSON, Supernumerary Circuit Judge, and adopted by this Court as its; opinion.
Affirmed.
Notes
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