Oldham v. State , 37 Ala. App. 251 ( 1953 )

PRICE, Judge.

The indictment charged defendant with the offense of transporting in quantities of five gallons or more, prohibited liquors or beverages, in violation of Section 187 of Title 29, Code 1940.

By plea in abatement and by various motions defendant raised the question of the court’s jurisdiction, contending that the offense, if any, was committed in the Alabama National Forest in Lawrence County, and that the indictment was based on illegal evidence for that the arrest, search and seizure were made by the officers without a warrant.

The demurrer to the plea in abatement was properly sustained. The State of Alabama has criminal jurisdiction extending over all federal forest reservations lying and being within the State. Garrison v. State, 22 Ala.App. 444, 116 So. 706; Hagood v. State, 23 Ala.App. 138, 122 So. 299.

The several motions were properly overruled. Even if the search is illegal, the use of evidence obtained thereby is admissible and is not violative of defendant’s constitutional rights. Ex parte City of Mobile, 251 Ala. 539, 38 So.2d 330; Jackson v. State, 251 Ala. 226, 36 So.2d 306. See also Alabama Digest Criminal Law, ®^394 for citations of authority.

The arrest was made and the case tried prior to the passage of the amendment to Sec. 210, Title 29, Code 1940. In any event, this amendment applies only to evidence obtained by means of an illegal search of a private dwelling.

The indictment substantially followed the language of the statute and was sufficient. There was no error in overruling the demurrer thereto. Harris v. State, 32 Ala.App. 519, 27 So.2d 794; Cusimano v. State, 33 Ala.App. 62, 31 So.2d 139.

On the trial the evidence for the State tended to show that one Yarbrough, a Criminal Investigator for the Alcoholic Tax Unit, Bureau of Internal Revenue, was traveling east on the Ridge Road in Lawrence County, in a jeep about 9:30 at night. Fie was followed by a government radio car with two officers. He met a Model A Ford coupe with 2 men in it, going west. As he pulled over to share the road one of the men ducked his head. This attracted Yarbrough’s attention and he noticed a Lauderdale County license tag on the car. When the government car with the radio' aerial sticking up came in sight the Model A speeded up. Mr. Yarbrough and one of the officers from the radio car gave chase. They blew the horn several times but the Model A would not get out of the center of the road. After about a mile the road widened and they drove along side and ordered the driver to stop. Yarbrough got out of the jeep and went to the car. He smelled liquor and saw a pistol on the seat and a five gallon can partly covered with a burlap sack. The can was full of whiskey and nine GI cans containing whiskey,, making fifty gallons in all, were found in the back of the automobile. Upon being asked his name, the driver stated: “I am Pete Oldham. I am an old liquor head.”

On cross examination the officers stated! the search and arrest were made without a warrant.

No evidence was offered for defendant.

The evidence was ample to sustain the verdict and the judgment of conviction. No error resulted in overruling the motion for a new trial.

The judgment of the trial court is affirmed.

Affirmed.