The charge and conviction was for transporting prohibited liquors in quantities of five gallons or more. Code of Alabama 1940, Title 29, Section 187.
The evidence for the state tends to show the officers saw defendant's automobile parked on the highway. "In the lane coming off of I-10 and entering Highway 90 all four wheels were on the blacktop." Deputy Sheriff Adkins testified:
"When I first noticed the car, when I came over the rise and noticed the bus parked there I noticed a door shut on the driver's side and when I passed it, I was watching it and I could see that they were watching me and I went on by and I decided I had better check it to see why they were parked there. I prepared to turn around and I seen them pull out in my mirror just as I was turning off to turn around."
* * * "Yes, sir, they came on and I could see that they were watching me and I pulled in behind them and this was approaching the light at Tillman's Corner. The traffic picked up at the time and it looked like they were trying to get away from me; they were changing lanes back and forth."
* * * "Yes, sir, I stopped them — well, they were changing lanes, actually you could have considered it reckless driving, but I mainly stopped them to see why they were parked in the highway."
"Q. You stopped them to see why they were parked on the highway?
"A. Yes, sir."
This witness had reported the car by radio when it started up after he saw it standing in the highway. After he stopped the car deputies Ray and Scott came up to assist him.
The vehicle was a 1960 Volkswagen bus, with a number of windows around it. There was a passenger in the car.
"I went around — after I advised him that it was illegal to park with all four wheels on the highway, I went around and checked the other passenger's identification."
The witness testified when he walked around the bus he could see "gallon jugs stacked up even with the window." They were clear glass jugs with liquid in them. "I could see the jugs and I asked him if he had shinny on board this wagon."
This question was asked the witness:
"Q. Did you formulate any opinion as to what the contents of those jugs were from your observation there and the attitude and condition of the driving and everything?
"A. Yes, sir."
Defense counsel objected, the court overruled the objection because the question had been answered. Motion was made to exclude the answer, which was also overruled. *Page 124
"Q. Did you then arrest him for transporting illegal whiskey?
"A. Yes, sir, after he told me it was shinny."
The witness stated he inspected the "whiskey" at the place where he stopped defendant.
In Yelder v. State, 44 Ala. App. 18, 200 So.2d 659, where the same incident was involved with essentially the same evidence as presented here, this defendant was charged with the offense of parking "a motor vehicle upon the paved or improved or main traveled portion of a public highway." We held the facts did not establish a violation of the statute.
Since the defendant was not committing an offense in the officers' presence, he had no duty or right to arrest him. The search of the automobile was incident to an illegal arrest and was an unlawful search. The motion to suppress as well as the objection to the evidence should have been sustained. Smith v. State, 240 Miss. 738, 128 So.2d 857.
The statement of the officer that defendant told him he had shinny in the automobile does not show consent to search the automobile or amount to a confession in the absence of proof that the statement was "freely and intelligently" made, and was voluntary. Duncan v. State, 278 Ala. 145, 176 So.2d 840.
The judgment is reversed and the cause remanded.
Reversed and remanded.