Opinion
7 Div. 237.
January 27, 1953. Rehearing Denied February 17, 1953.
Appeal from the Circuit Court, Etowah County, J.H. Disque, Jr., J.
Roy D. McCord and Rowan S. Bone, Gadsden, for appellant.
Under the warrant defendant was illegally arrested, and such warrant would not support conviction in the county court and circuit court. The point was made before entering upon trial. The search warrant called for a search of the house and not the barn, which was across the road and open to the public, others than defendant having free access. Anything found there could not be used to convict defendant. Evidence as to the barn was clearly irrelevant.
Si Garrett, Atty. Gen., and Wm. H. Sanders, Asst. Atty. Gen., for the State.
Presumably there is a mistake in one of the dates shown on the warrant. But once defendant is physically present before the court a defect or illegality in his arrest, even though seasonably raised, may not be the basis for a reversal, invalidity of the original arrest being then immaterial. Commonwealth v. Gorman, 288 Mass. 294, 192 N.E. 618, 96 A.L.R. 977; Gladden v. State, 36 Ala. App. 197, 54 So.2d 607; Id., 256 Ala. 368, 54 So.2d 610. Defendant's house and barn constituted one possession, and evidence tending to prove the presence of liquor in the two different places was admissible. Holland v. State, 21 Ala. App. 520, 109 So. 885; Johnson v. State, 29 Ala. App. 276, 196 So. 151; Green v. State, 22 Ala. App. 536, 117 So. 607; Wilson v. State, 27 Ala. App. 38, 166 So. 715.
In the court below the accused was convicted on a charge of violating the prohibition law.
The affidavit and warrant bear the date of issuance as November 26, 1951. The return of the sheriff is: "Executed by arresting the within named Defendant and Committed to jail 11/24/52."
The cause was tried in the county court and after conviction the defendant took an appeal to the circuit court. In the latter jurisdiction the solicitor filed a complaint.
At the inception of the trial proceedings in the circuit court, appellant's counsel made a motion to strike the affidavit and. warrant on the grounds that the return of the sheriff showed the arrest prior to the day the affidavit and warrant were issued.
This mistake in dates was not called to the attention of the judge of the county court. The trial in the circuit court proceeded in due form by the filing of the complaint and the appearance of the defendant. There certainly was no prejudicial error to the rights of the accused in the action of the circuit judge in denying the indicated motion.
The officers, armed with a warrant to search the premises of the appellant, went to the residence of the latter and there found a jug containing about one-half gallon of "white liquor." The defendant admitted ownership of the whiskey to the officers.
One of the officers extended his search into the appellant's barn, which was just across the road from the dwelling, and found there five gallons of whiskey.
The court overruled appellant's objections to the testimony relating to the search and finding in the barn. There is no merit in the insistence that this was error. Holland v. State, 21 Ala. App. 520, 109 So. 885; Boykin v. State, 23 Ala. App. 598, 129 So. 491; Johnson v. State, 29 Ala. App. 276, 196 So. 151; Green v. State, 22 Ala. App. 536, 117 So. 607.
There is no prejudicial error in the record. The judgment below is ordered affirmed.
Affirmed.