Herring v. State

48 So. 476, 158 Ala. 31, 1908 Ala. LEXIS 648

• Court: Supreme Court of Alabama
• Decided: December 17, 1908
• Status: Published

Opinions

SIMPSON, J.

The appellants were tried and convicted of the offense of selling spirtuous, vinous or malt liquors in violation of section 7357 of the Code of 1907.

The affidavit upon which the defendants were arrested ivas made before Hon. William Jackson, judge of the city court of Bessemer, and the warrant was issued by him. Motion was made to quash the affidavit and warrant on the ground that said judge of said city court was not authorized to administer said affidavit or to issue said warrant.

The statute (section 7359, Code of 1907) specifically provides that the affidavit shall he made before a justice of the peace, or judge of the county court, and the warrant issued by the same. The court erred in overruling said motion. Section 7519 refers only to affidavits and warrants under that chapter of the Code — which is the chapter in regard to proceedings to keep the peace.

The affidavit and warrant being void, the entire proceeding is without authority of law. The judgment of the court is reversed, and a judgment will be here rendered discharging the defendants.

Reversed and rendered.

Dowdell, Denson, and McClellan, JJ., concur.