Childers v. State , 156 Ala. 96 ( 1908 )

DOWDELL, J.

In Williams v. State, 44 Ala. 41, it was decided by this court that the inhibition contained in section 7, art. 1, of the Constitution of 1868, which is the same as section 5 of our present Constitution, was against the • issue of Avarrant of arrest Avithout an affidavit, and not against the making of an arrest without a Avarrant. That case was cited approvingly in Ex parte Thomas, 100 Ala. 102, 18 South. 517, and we know of no case in Avhich there has been any departure. There being no constitutional prohibition, state or federal, it is undoubtedly within legislative competency by statute to authorize an officer to make an arrest Avithout a Avarrant for either a felony or misdemeanor, Avhether the offense be one committed in or out of the presence of the arresting officer.

^ Section 25 of the charter of Bessemer (Loc. Laws 1900-01, pp. 444-462), authorized and empoAvered the municipality by ordinance to empower the police officers of the city “to make arrests either with or Avithout warrant.” In pursuance of this poAver conferred by the charter an ordinance Avas duly passed authorizing the police officers to malee arrests Avithout Avarrant. There is no conflict betAveen this provision of the charter as to making arrests and the general statute (section 5211 of Code of 1896). The general statute authorizes arrests without warrant in case of felony, though not committed in the presence of the officer. By the charter provision in question the Legislature merely extended the authority of making arrests by police officers within the police jurisdiction of the municipality to cases of misdemeanor, and this we think the Legislature had the unquestioned right to do. \

What we have said above sufficiently indicates the errors committed in the rulings of the trial court, and will likewise be a sufficient guide for the purposes of this case on another trial.

Reversed and remanded.

Tyson, C. J., and Anderson and McClellan, JJ., concur.