The Grand Jury of Mobile County, Alabama, charged the appellant with the unlawful possession of Secobarbital Sodium, and also the unlawful possession of Codeine Phosphate in violation of the Alabama Uniform Controlled Substances Act.
Mobile County Deputy Sheriff David Beck testified that he went to the home of the appellant, located at 652 Rickarby Street in Mobile, on July 26, 1972, pursuant to a search warrant issued by Paul W. Brunson, Judge of the Court of General Sessions of Mobile County. He stated that he arrived at the residence at about 6:45 p. m. He further testified that the official sunset on this date was at 7:48 p. m. He stated that he entered the bedroom at this residence in which the appellant slept, and from a bedside table seized several vials containing different capsules; that among those seized were the vials subsequently offered in evidence. Deputy Beck further stated that the appellant was not at home at the time of these seizures, but that he and another officer had knocked and presented the warrant to some three or four persons present at the time. He further stated that the appellant came to the Mobile County Jail that same evening to inquire about her nephew and to ask why her residence had been searched. Before questioning her, Deputy Beck read a "Miranda card" to her, and upon being advised that she fully understood her rights, the appellant, upon being shown the bag in which the several drugs seized had been placed, in essence made the following comments:
State Toxicologist Nelson E. Grubbs testified that from his chemical analysis of the contents, one of the drugs was "Codeine Phosphate, the salt of Codeine," and the others were barbiturates, one of the barbiturates being known as Seconal sodium, and the other known as amobarbital sodium, commonly called, "Tunial." Dr. Grubbs further testified that these drugs were controlled substances within the meaning of the Alabama Act requiring a prescription by a registered medical practitioner.
On cross-examination concerning the Codeine drug, Dr. Grubbs stated it was known as "Empirin No. 3, a pain killer."
The appellant's motion to exclude the State's evidence was overruled.
Betty Jean Holcomb, testifying for the appellant, stated that she had stayed at the appellant's home on several occasions prior to July 26, 1972, and that she had a prescription from Dr. LeBaron Foster for sleeping pills, which she left at appellant's home.
Miss Holcomb denied owning or having any knowledge of the Empirin No. 3 prescription.
The appellant, Mamie Delores Funches, testified that she resided at 652 Rickarby Street in Mobile, and owned this residence. She further stated that one of the drugs seized from her home on July 26, 1972, the "Tunial," were sleeping capsules, belonging to her friend, Betty Jean Holcomb. Mrs. Funches further stated that she had a prescription from Dr. Foster for the Empirin No. 3 compound for "headaches." On cross-examination concerning where she had this prescription filled, she stated, ". . . I deal with a lot of pharmacies, professionally, and I think on several occasions I went to Laddy's." She further stated that she was shown the pills in question at the County Jail, and that they had been removed from her bedroom in her home, though she denied stating to Deputy Beck that "all the pills were hers."
Further on cross-examination, when asked if she had a prescription for "barbiturates" at that time, she replied, "No, I don't think so. I would like to say this, they took all of the medicine out of my medicine cabinet."
Dr. LeBaron Foster testified that he was a practicing physician in Mobile, Alabama, and that the appellant was one of his patients. He further stated that he had been treating her for some three or four years and had given her a prescription for "Empirin Compound No. 3 as a pain killer." He further testified that he had given a "Tunial" prescription to Miss Betty Jean Holcomb, who was also a patient of his prior to July 26, 1972.
In rebuttal, the State called Pharmacist Eddie Lee Clements, who testified that he was employed at "Lincoln Drug Store" in Mobile, and had examined his prescription files for the two-year period prior to July 26, 1972; that he found no prescription on file for either Mrs. Mamie Delores Funches or Miss Betty Jean Holcomb; that he had specifically looked for prescriptions during the sixty-day period immediately preceding July 26, 1972, and found none for either woman at the drugstore. He further testified that Mrs. Funches and Miss Holcomb were regular customers of his drugstore.
Also, in rebuttal, the State presented the testimony of Barbara Jean Foster Glaude, who testified that she was a registered pharmacist and owned the Professional Pharmacy in the City of Mobile, which was in the same building as the office of her brother, Dr. LeBaron Foster. She further stated that she knew the appellant and also Miss Betty Holcomb, and that she had examined her files for the two-year period immediately prior to July 26, 1972, specifically, the sixty-day period immediately
The search warrant in question contains the following language:
The return to the above warrant shows that the same was executed at 7:20 p. m., July 26, 1972. The appellant contends that the warrant in question was not executed "in the daytime," as required by the language of the above warrant, and, further, that the time limitations pertaining to the execution of the search warrant, as set forth in Title 29, Section 220, Code of Alabama 1940, should be read into the provisions of Title 15, Section 107, Code of Alabama 1940.
In Jordan v. State, 39 Ala.App. 469, 103 So.2d 815, former Presiding Judge Harwood, speaking for the Court, stated the following:
"However, under the general provisions relating to search warrants (Sections 101-107, Title 15, Code of Alabama 1940), a search warrant may be executed at any time, day or night, if issued on an affidavit stating positively that the property is in the place to be searched, and the magistrate authorizes a search during the day or night.
Deputy Beck testified that he arrived at the residence in question about 6:45 and concluded "our search about 7:20." He further testified that the official sunset occurred on July 26, 1972, at 7:48, according to official records kept for that date.
In discussing this same problem pertaining to execution of a search warrant in
Further, from Liebrich, supra:
Moreover, this same problem is dealt with in State v. Cain, (Mo.App.) 31 S.W.2d 559, 561:
It therefore follows that the appellant's objection to the evidence on the basis of the improper execution of search warrant was properly overruled.
The appellant further contends that the State failed to prove a prima facie case, and that the overruling of his motion to exclude and his request for the affirmative charge was error.
The State established the ownership of the residence as being that of the appellant, and that the drugs in question were seized from a bedside table in the bedroom occupied by the appellant. Further, the vials in which the drugs were found lacked a prescription label of a registered pharmacy. A chemical analysis proved the drugs in question required the prescription of a registered medical practitioner.
Moreover, the appellant, when shown the bag in which the materials seized from her bedroom were placed, stated "they were hers."
It therefore follows that the rulings by the trial court in denying appellant's motion to exclude and her request for the affirmative charge were proper. Waldrup v. State, 52 Ala.App. 292, 291 So.2d 383, cert. denied 292 Ala. 756, 293 So.2d 828.
The appellant contends that the refusal of Charges Nos. 6 and 8 were error, and that such were not covered by the oral charge of the court or other given charges. From the record:
"DEFENDANT'S REQUESTED CHARGE NO. 6
. . . . . .
"DEFENDANT'S REQUESTED CHARGE NO. 8
It is clear that refused Charge No. 6 is covered by the above portion of the oral charge. Title 7, Section 273, Code of Alabama 1940. Buckelew v. State, 48 Ala. App. 411, 265 So.2d 195, cert. denied 288 Ala. 735, 265 So.2d 202.
The language of appellant's refused Charge No. 8, which was approved by the Supreme Court of Alabama in Wilson v. State, 243 Ala. 1, 8 So.2d 422, reads as follows:
In addition to adding the word "her" at the end of the charge, which was refused here as No. 8, additionally, refused Charge No. 8 uses the word "voluntarily" immediately
Moreover, the essence of this charge was covered in the oral charge of the trial court. Its refusal was therefore proper. McWilliams v. State, C.C.A., 1974, 52 Ala. App. 487, 294 So.2d 454, cert. denied, 1974, 292 Ala. 731, 294 So.2d 457.
We have carefully examined this record, as required by Title 15, Section 389, Code of Alabama 1940, and find same to be free from error. The judgment is due to be and the same is hereby
ALMON and DeCARLO, JJ., concur.
CATES, P. J., and HARRIS, J., dissent.
CATES, Presiding Judge (dissenting).
I consider that present five-man court has not overruled the construction of Code 1940, T. 15, § 103, referred to in Brandies v. State, 44 Ala.App. 648, 219 So.2d 404; Tyler v. State, 45 Ala.App. 155, 227 So.2d 442; and Myrick v. State, 45 Ala.App. 162, 227 So.2d 448. In this last case we said:
Since there was evidence before the issuing magistrate in the case sub judice which was not reduced to writing, I am impelled to respectfully dissent.
We are of the opinion that this affidavit is legally sufficient when tested by Aguilar and Spinelli standards. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723: Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Clenney v. State, 281 Ala. 9, 198 So.2d 293; Myrick v. State, 45 Ala.App. 162, 227 So.2d 448. An informer need not be shown to be reliable any particular number of times. Clenney v. State, 281 Ala. 9, 198 So.2d 293; Davis v. State, 46 Ala.App. 45, 237 So.2d 635, affirmed 286 Ala. 117, 237 So.2d 640; Bates v. State, 51 Ala.App. 338, 285 So.2d 501, cert. denied 291 Ala. 773, 285 So.2d 506.
"Q. All right; now did anything else occur that night that you told Judge Brunson about?