The opinion
JOHNSON, Judge
(dissenting).
The companion case mentioned in the majority opinion, Yelder v. State, 44 Ala. App. 18 , 200 So.2d 659 , was decided when I was “not sitting” and is, therefore, not my opinion. I have since read the same and emphatically disagree therewith.
In my judgment, the great weight of the evidence in this case tends to prove that the officer saw appellant’s automobile parked on the public highway “in the lane coming off of I. 10 and entering Highway 90; all four wheels were on the blacktop”. Deputy Sheriff Adkins testified that this was the reason he stopped the 1960 Volkswagen bus, and that he also considered stopping them for “reckless driving” because of the manner in which they were “changing lanes”.
The Code of Alabama, 1940, Tit. 36, Sec. 25, states in part that it shall he “a misdemeanor” to “park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway.” The section states that a vehicle may be stopped adjacent to or partially on a highway, but here the evidence showed that appellant’s vehicle was stopped fully on the highway, and because they suddenly drove the vehicle away when Deputy Sheriff Adkins appeared, it cannot he said that they were “disabled”. As provided in Tit. 36, Sec. 25, supra, being “disabled” is the only lawful excuse for stopping on a highway. Thus, I must disagree with the majority opinion which states that the facts show no law violation, and it is my opinion that a misdemeanor was in fact here committed in the presence of an officer, giving him lawful cause to arrest appellants. Deputy Adkins might have lawfully stopped appellants for reckless driving if they had not already, in his opinion, committed the parking violation above referred to.
In Watts v. Mississippi, Miss., 196 So.2d 79 , the court states the following:
“Arrest of defendant on charge of reckless driving was lawful, where police officers had followed vehicle driven by defendant, noticed that it was weaving from one side of lane of traffic to other, and, as soon as it was safe to do so, stopped automobile * * *
The circumstances in the Watts case from which we quote, were similar to those in the case at bar. Watts further states:
*125 “No search warrant is necessary in order to search vehicle in which person is riding at time of his arrest for offense committed in presence of officer, including felony or misdemeanor; and such search is not unreasonable under constitutional guaranty,
“General right to search vehicle as incident to lawful arrest extends to cases involving traffic violations as well as to more serious offenses.
“Automobile in which arrested person is found can be searched as incident to arrest as long as arrest itself is lawful.
“Anything seen by arresting officer while he is not trespassing can form basis for valid search and seizure.”
In Thompson v. State, 41 Ala.App. 353 , 132 So.2d 386 , this court stated:
“As to the seizure from the car, we consider Garrison and Smith needed no warrant because of the openness of the trunk, the visibility of the cans and above all the defendant’s admission.”
The admission here referred to is as follows :
“Q. Did he say what he was doing there ?
“A. He said he was trying to get away from us.
* * * * Hi *
“A. I asked immediately, ‘Where he got — Where did you get this ?’ He said T found it while I was working.’ And I believe he said he found it the day before and hid it and picked it up this day.
“COURT: Did he call it whiskey before you opened the can to inspect it?
“A. Yes, sir, he called it whiskey.”
In the case before us, Deputy Sheriff Adkins testified that he saw “several jugs” through the windows of the bus, piled “window high”; and that these jugs were in “clear view”.
The law of Alabama regulating arrests does not require that the arresting officer have full and conclusive proof of the commission of a crime before arrest, but only that he have probable cause to believe that there was a crime committed.
Code of Alabama, 1940, Tit. 29, Sec. 187 states as follows:
“It shall be unlawful for any person, firm or corporation, or association within this state to transport in quantities of five gallons or more any of the liquors or beverages, the sale, possession, or transportation of which is prohibited by law in Alabama. Any person convicted of violating this section shall be guilty of a felony, and upon conviction, shall be imprisoned in the penitentiary of this state for a period of not less than one year, nor more than five years.”
It is here undisputed that seventy-one gallons were involved and many could be seen by the most casual observer.
I do, therefore, dissent from the majority opinion and feel that this judgment should be affirmed.