Miller v. State

285 So. 2d 117 (1973)

In re Gene Lawrence MILLER, alias v. STATE. Ex parte Gene Lawrence Miller, alias.

SC 580.

Supreme Court of Alabama.

November 8, 1973.

Samford, Torbert, Denson & Horsley, Opelika, for petitioner.

No brief for the State.

HARWOOD, Justice.

The only point asserted as error in the petition for writ of certiorari is that the opinion of the Court of Criminal Appeals, 51 Ala.App., 285 So. 2d 113, is in conflict with certain prior decisions of this court and the Supreme Court of the United States. We therefore confined in our consideration of this petition to this single point.

After reviewing the opinion of the Court of Criminal Appeals in the aspect above mentioned, it is our conclusion that the same is by and large correct in the application of governing legal principles to the facts shown in the opinion of the Court of Criminal Appeals.

We are not in accord, however, with the following statement appearing in the body of the opinion here being considered:

"The resulting search was incidental to the arrest made after finding the combat boot in the trunk of the vehicle with the packets of Marihuana inside, in accordance with the information received as a result of the telephone call. * * *"

The above is not a correct statement of the law. Had it read: "The resulting arrest was incidental to the search, etc." (which search we add was made on sufficient probable cause), then no defect would be present. It is apparent, however, from a reading of the opinion as a whole that the transposition of the words "arrest" and "search" was a mere inadvertence.

Writ denied.

HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur.