Opinion
8 Div. 283.
May 11, 1944.
W. A. Barnett, of Florence, for petition.
Affidavit and warrant of arrest not on oath, and not alleging that affiant has probable cause for believing and does believe, is void, and does not state an offense. Campbell v. State, 238 Ala. 439, 191 So. 812; Johnson v. State, 82 Ala. 29, 2 So. 466; Miles v. State, 94 Ala. 106, 11 So. 403; Butler v. State, 130 Ala. 127, 30 So. 338; City of Selma v. Shivers, 150 Ala. 502, 43 So. 565; Chappell v. State, 156 Ala. 188, 47 So. 329; Ethridge v. State, 26 Ala. App. 600, 164 So. 397; Slater v. State, 230 Ala. 320, 162 So. 130; Slanton v. State, 27 Ala. App. 243, 170 So. 83. Void affidavits are matter of which court must take notice ex mero motu. Ethridge v. State, supra; Thomas v. State, 52 So. 34; Dunklin v. State, 134 Ala. 195, 32 So. 666; Hornsby v. State, 94 Ala. 55, 10 So. 522; Francois v. State, 20 Ala. 83; Slaton v. State, supra.
Wm. N. McQueen, Acting Atty. Gen., and John O. Harris and Forman Smith, Asst. Attys. Gen., opposed.
Where affidavit alleges specifically that accused committed the offense charged it is stronger than the allegation of probable cause and is sufficient. Holman v. State, 144 Ala. 95, 39 So. 646; Redd v. State, 169 Ala. 6, 53 So. 908; Poole v. State, 28 Ala. App. 199, 182 So. 86; Johnson v. State, 27 Ala. App. 190, 168 So. 602. Objection to affidavit is not available when raised for first time on appeal. Gilbert v. State, 25 Ala. App. 169, 142 So. 682; Vinson v. State, 26 Ala. App. 48, 158 So. 259; Id., 228 Ala. 105, 152 So. 260.
The rule has long been established in this jurisdiction that where the affidavit alleges specifically that the accused committed the offense charged, it is stronger than the allegation of probable cause, and hence was sufficient. Redd v. State, 169 Ala. 6, 53 So. 908.
Objections to the affidavit are not available when raised for the first time on appeal. Vinson v. State, 26 Ala. App. 48, 152 So. 259; England v. State, 23 Ala. App. 393, 126 So. 174.
The petitioner was tried in the circuit court on the charge that before the "commencement of the prosecution he was guilty of the offense of violating Amended Regulation No. 56 promulgated by the Alcoholic Beverage Control Board on towit: February 28, 1941, which rule reads as follows: 'It shall be unlawful for any person * * *, who has not been licensed so to do under the provisions of the Alabama Beverage Control Act, to sell, offer for sale or have in possession for sale, any liquor as that term is defined in the Alabama Beverage Control Act.'
"In that the said John Wesley Wells did sell, offer for sale, or have in possession for sale alcoholic, spirituous, vinous, fermented, or other alcoholic beverages, contrary to law, against the peace and dignity of the State of Alabama."
The Court of Appeals passed upon the case and found the defendant guilty as charged. We have carefully considered the opinion of the Court of Appeals and find no error in the judgment. The petition for certiorari should be and is denied.
Writ denied.
GARDNER, C. J., and LIVINGSTON and STAKELY, JJ., concur.