York appeals from a conviction of transporting prohibited liquors in violation of the five-gallon law. Code 1940, T. 29, § 187. After adjudication and denial of probation, the court sentenced him to serve two years in the penitentiary.
The Attorney General, in brief, gives the facts as follows:
York defended on alibi.
Defense counsel objected to the reception of the seized whiskey in evidence.
The constable in Cardozo's metaphor no longer may vindicate his trespass by pointing to the defendant's guilt: his originating sin frustrates society's enjoyment of the forbidden fruit. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
Concededly, the prosecution, to meet the burden cast on it, may justify the lack of a warrant to search a moveable by establishing (1) that there was imminence of escape or loss of evidence, and (2) that there was a prior probable cause to believe evidence was therein hidden. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.
The record here, however, is devoid of showing any emergency within the Carroll rule. There was no testimony of leaking whiskey, shortage of guards in face of likely recapture, perishable cargo, or other circumstances in which going to a magistrate would leave the proverbial barn door open too long.
That hindsight shows us the cargo was contraband and hence not York's, is only a possessory question. York's right to be searched only under the Constitution overrides, in a case involving criminal conviction, the State's right to confiscate his car and its cargo.
The rule of remandment, even only on the barest possibility of the State making a prima facie case on a new trial as laid down by Hendricks v. State, 252 Ala. 305, 41 So.2d 423, does not apply here. Lawson v. State, 42 Ala.App. 172, 157 So.2d 226; Brown v. State, 42 Ala.App. 429, 167 So.2d 281.
Under Code 1940, T. 15, § 389, it is requisite that the judgment be not only reversed but also that the appellant be discharged.
Reversed and rendered.
The Attorney General cites us to: Feguer v. United States, 8 Cir., 302 F.2d 214, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, and Newingham v. United States, 3 Cir., 4 F.2d 490.
Feguer v. United States, supra, 302 F.2d at 247, gives grounds for searching the car stolen from the victim of Feguer's kidnapping. Beyond Feguer's and York's driving cars, all correspondence between the cases ends.
The searching of the room Feguer had formerly rented in Dubuque has no application to a hypothetical search which might have been made of York's car while it was off the road in the plum thicket. The cases cited by the Eighth Circuit (e. g., Abel, supra,
Hester v. United States, supra, involved an officer picking up a thrown away jug still holding about a quart of whiskey. Hester had discarded the jug—probably hoping to break it—while running through an open field. Holmes, J., held this act "was no seizure in the sense of the law."
Newingham v. United States, supra, concerned use of papers in evidence. Some had been taken from a desk. The court found it "clear that the defendants had abandoned them."
The mere finding of an automobile stalled alongside or near a road is not alone sufficient to say that the owner has abandoned it. Beyond this we need not conjecture, since here the sheriff made his seizure not at the plum thicket but in the shadow of the courthouse.