193 Ky. 452 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
The 'appellant, Buster Ash, was tried and convicted in the Henderson circuit court under an indictment accusing him “of the offense of unlawfully keeping for sale and transporting spirituous and vinous intoxicating liquors for other than sacramental, medicinal, scientific or mechanical purposes, committed in manner and form as follows:” The accusatory part of the indictment alleges that he “did unlawfully keep for sale and transport spirituous and vinous intoxicating liquors for other than sacramental, medicinal, scientific or mechanical purposes, against the peace and dignity of the Commonwealth of Kentucky.” The indictment was bad for duplicity in that it accused the defendant of the two offenses of keeping for sale such intoxicating liquors and also of transporting them. However, there was neither a motion by defendant for the Commonwealth to elect the offense for which it would try him, nor was there a demurrer to the indictment and so far as the trial under review is concemed the duplicity in the indictment was waived.
This appeal by defendant calls in question the competency of the evidence upon which his conviction was had, since it is strenuously insisted by his counsel that the evidence introduced by the Commonwealth, which was all that was heard upon the trial, violated the provisions of section 10, of our Constitution, which says: “The people shall be secure in their persons, houses, papers and possessions from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation. ’ ’
But, waiving that question, and proceeding directly to the determination of the constitutional one presented, we are clearly of the opinion that in the introduction of the testimony of the officers the constitutional protection was violated and, under the doctrine of the case of Youman v. Commonwealth, 189 Ky. 152, 224 Southwestern Reporter 860, and 13 A. L. R. 1303, a peremptory instruction to acquit defendant should have been given. It was held in that ease that “ the section does not permit any kind or character of search of houses, papers, or possessions without a 'search warrant, ’ ’ and that ‘ ‘ this constitutional provision, which is broad enough to, and does, include every article and species of property, was intended to afford the individual, however humble he may be, protection and security against any unlawful invasion of his premises or possessions” by any officer assuming to act under color of his office and that neither he nor any one else had the right to search any of the property included within the constitutional provision on suspicion but only under a legally issued search warrant, or without such warrant to search anything found thereon ‘ ‘ such as boxes, barrels, drawers, closets or other places, in which articles of property of any kind may have been placed by the owner,” although “there may be reasonable grounds to believe that he is guilty of the charge preferred against him, or the offense of which he is suspected.” It was further held that the constitutional protection extended to and included baggage carried about by the accused and that a seizure of or search of his baggage without the necessary search warrant was as much unauthorized as a similar search of his residence or houses. Furthermore, it was therein held, following numerous opinions upon the subject, that evidence obtained by the unlawful seizure or search could not be introduced against the accused, nor could a conviction be sustained thereon. We
In the Youman case, and in the great majority of cases throughout the country in which the question was presented the forbidden seizure and search were had when the accused was physically absent. In the case referred to the search was of the residence and premises of You-man and, necessarily, if the word “possessions” in the constitutional provision included baggage, as we hold it does, it cannot be seized or searched in defendant’s absence any more than his houses may be so searched. Besides, the object and purpose of the constitutional provision in protecting the citizen in the privacy and security of his “papers and possessions” would be defeated altogether unless his baggage or other receptacles in which such papers or possessions are carried, though only constructively in the possession of the owner, were included in the constitutional guaranty.
It is doubtful if our boasted constitutional form of government affords any greater single protection or bulwark to American liberty than the one against unreasonable search and seizure, forbidding either without a warrant legally issued, authorizing it to be done, An examination of the authorities, subsequently referred to, will clearly demonstrate that the legislature itself is not the sole judge of the reasonableness, of the search and seizure for which it may authorize a warrant, but it is quite universally and rightfully held that the enforcement of prohibition statutes against the sale, manufacture, etc., of intoxicating liquor affords an instance where the issual of such warrants may be authorized. (24 R. C. L. 716.) But, even in that case, the affidavit or affidavits upon which the warrants are issued must contain more that the bare suspicion of the affiants. Of course, if the accused should be arrested pursuant to any of the methods legally authorizing it, any article of a criminatory nature found upon or about his person or in his immediate presence will be competent evidence against him, though discovered without a search warrant. And, likewise may such evidence be introduced if developed by a search to .which the accused consented, or which was consented to by the one lawfully in possession
A complete history of the conditions which brought about the insertion in our Federal Constitution 'and in most, if not all, of the Constitutions of-the various states, the protecting provisions against unlawful seizures and searches is found in Cooley’s Constitutional Limitations, seventh edition, pages 424-434, inclusive. It is there shown, as it is also done in the' case of State v. Marxhausen, 3 A. L. R. 1505, that prior to our revolution a practice had grown up in England for the courts to issue what might be termed blanket warrants or orders authorizing the officer into whose hands the process went to search persons, houses and possessions in order to obtain evidence of the commission of a crime and to arrest the person whom the evidence indicated had committed it. Such practice and conduct, as well as higli-handed procedure, was so inimical to the Anglo-Saxon notion of liberty that the judges of the higher courts of that country began to denounce the practice as revolutionary and tyrannical, and Lord Camden, in the case of Entinck v. Carrington, 19 Howard St. Tr. 1209, said: “To enter a man’s house, by virtue of a nameless warrant, in order to procure the evidence is worse than the Spanish Inquisition — a law under which no Englishman would wish to live an hour.” See also May’s Constitutional Plistory of England, chapter 11.
Similar unauthorized seizures and searches had commenced to be indulged in by the American Colonies, and at a trial had in Boston, Mass., in February 1761, James Otis, a celebrated lawyer of that day and a native of Massachusetts, was Advocate General of the Crown at Boston. He declined to prosecute the persons arrested under such unauthorized warrants and resigned his- office and tendered his services to the defendants without remuneration, though offered a large fee, saying, “In such a case as this I despise a fee.” His argument in the ease will be found in the Life and Works of John Adams, vol. II, page 523, and in it he denounced such practices and such writs as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law that ever was found in an
Justice Bradley, of the Supreme Court of the United States, in the case of Boyd v. United States, 116 U. S. 616, in referring to the opinion of Lord 'Camden, supra, said: “The law as expounded by him has been regarded as settled from that time to this, and his great judgment on that occasion is considered as one of the landmarks of English liberty. It was welcomed and applauded by the lovers of liberty in the colonies, as well as in the mother country.” A short while after the rendition of the Entinck opinion, and in 1766, the English House of Commons passed resolutions condemnatory of the g’rown-up practices concerning searches and seizures, and during the discussion of the resolutions Lord Chatham said: “Every man’is house is called his castle. Why? Because it is surrounded by a moat, or defended by a wall? No. It may be a straw-built hut, the wind may whistle around it, the rain may enter it, but the King cannot. ’ ’ The interpretation given to our constitutional provision extends the same sacred protection to one’s “papers and possessions” as it does to his person or his houses, and it will indeed be a sad day when misguided innovators may .succeed in destroying it. Shortsighted statesmanship, in order to serve immediate purposes, sometimes place the end to be accomplished above the
In the Marxhausen case, supra, the officers had no search warrant and they made the seizure and search therein complained of upon no higher authority than bare suspicion. In denouncing their conduct, the court said: “They entered the home of defendant by command of no court; they searched his premises by virtue of no process. They justify, if at all, under administrative will and mandate, not recognized by the Constitution and unauthorized in a government of law. That ‘the end justifies the means ’ is a doctrine that has not found lodgment in the archives of this court. The search and seizure detailed in this record was an unauthorized trespass and an invasion of the constitutional rights of this defendant. ’ ’ It is true the search there involved was of a house, but as we have seen our constitutional provision includes baggage (as within the term “possessions”), as well as houses.
The Youman case, as we have seen, is also reported in 13 A. L. R., page 1303. Just in front cf that case, as reported in the volume referred to, are a number of others from other states, dealing with the question of unlawful seizure and search as contained in the constitutions of those respective states, and beginning on page 1316, at the end of the Youman opinion, is an extended annotation which is supplementary to another one found in 3 A. L. R., 1514, which itself follows a number of other reported cases upon the subject. In those annotations and cases the subject is exhaustively discussed in all its phases, and we will not tax the reader or lengthen this opinion by incorporating excerpts therefrom, but content ourselves with only referring thereto, with the statement that the principles hereinabove announced are thoroughly substantiated therein, and a reading of which will induce the conviction that the courts of the various states wherein the constitutional provision under consideration, or
It, therefore, results that all evidence heard upon the trial of appellant was incompetent and the court should have instructed the jury to find him not guilty. Wherefore, the judgment is reversed with directions to grant the motion for a new trial and for proceedings consistent herewith.