■ Aрpellant, Charles Henry Brewster, was convicted- as :an lhabitual criminal and his punishment -was fixed at life imprisonment under KRS 431.190. He assigns three grоunds for reversal: 1. It-was-prejudicial error for the court not to require .the police officer to divulge .the name of the person who informed on. appellant ,2.-. appellant’s arrest was illegal, therefore- his--car could not -be searchеd without a warrant; 3. the court erred in not submitting to the jury under an appropriate instruction whether appellant consented to the search of his car.
A liquor store in Louisville was burglarized and Bert W. Hawkins, a Lieutenant on the Louisville Police Force, received confidential information that appellant and Richard Woods had committed the crime. Hawkins had policemen Tinsley аnd Shel-bourne arrest Woods. Upon being questioned by Hawkins, Woods confessed his part of the crime and while hé did not actually say appellant Brewster committed the burglary with him, yet Woods intimated as- much.
Hawkins after receiving this information from Woods, ordered the samе two officers to arrest Brewster, which they did and brought him and his car to the police station. The car was parked right by the
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house "in whiсh Brewster lived and was driven to - the police station by the officers when they arrested him, hence Com. v. Lewis,
On the witness stand on cross-examination Lt. Hawkins refused to tell the jury the name of his confidential informer, and the cоurt refused to make him divulge this fact. In giving his testimony in chambers before the judge, and not 'in the hearing of the jury, Hawkins said he-was willing to divulge to the judge the informer’s name, but would decline to -give it to the jury.Appellant argues that it was prejudicial error for the judge not to require Hawkins tо divulge the name of his informer, citing from the United States District Court of Kentucky the case of U. S. v. Keown,
These.authorities are all to.the effect that when an officer on information given him makes аn arrest and searches the accused, the officer must on the trial, if accused demands it, give the name of his informer so. that th.e.court may .determine whether or.not the officer, had probable cause for making the arrest to which the search was.incident. Judge Elwood Plamilton said in the Keown opinion [
This is just what Lt. Hawkins did in this case. Aсting on what the informer told him, Hawkins had Woods arrested and in questioning Woods, .received, such information to cause appellant Brewster’s arrest. Therefore, it was not necessary for Hawkins to divulge on the witness stand the name of his informer.
Criminal Code of Practiсe',- § 36(2) provides a peace officer may make an arrest without a warrant,, “when a public offense is committed in his presence, or when he has reasonable grounds for believing that the person arrested has committed a felony.” We have held that, “reasonable grounds” for believing a person had' committed a felony, which authorized a peace officer to make an arrest without a warrant under § .36(2), are practically the same as “probable cause” used in § 10 of our Constitution which fоrbids the issuing of a search warrant unless supported by an affidavit showing probable cause. Mattingly v. Com.,
Evidently, to determine whether Lt. Hawkins had reasonable grounds to cause appellant Brewster’s arrest, the trial judge heard this officer’s testimony in chambеrs outside the presence of 'the jury. Hawkins testified that picked up with Woods was a man named “Tennessee” who Woods said was nоt connected with the "crime and stated, “I will tell the whole story if you will turn ‘Tennessee’ loose’” Hawkins then asked Woods, “Was Brewster with you or was he not with you” ? Woods replied, “I don’t want to get myself killed. I can’t talk on thát”.
We--quote -from Lt. Hawkins’ testimony relative to his questioning Woods:
*65 “Thе questioning went on, and he would not come out and openly name Brewster, ‘You were with Brewster, where does Brewster stay’ ? He said, ‘Up in the 700 block East Market. He stays with a girl’. I said,‘‘Is he there now’? He said, ‘Yes’. I said, ‘Where are the tools that were used in the break-in into the place’? He says, ‘The other fellow has them’. I said, ‘If we go to 721 East Market and find Brewster, are we likely to find the tools’? He says', ‘If he still has them you will find them’, and yet he never went on to name Brewster. But the conversation went on that way for an hour or an hour and a half, and thеre was an admission that Brewster' was the man, yet he was reluctant to name Brewster, as the man. Yet, we had information prior to the time we picked up Woods that Brewster was the man with Woods”.
It is patent that the information Lt. Hawkins received from Woods furnished him with reаsonable grounds- 'for believing that Brewster had committed a felony, therefore Hawkins was justified in directing officers Tinsley and Shelbourne to leave the room where Woods was being questioned and to arrest Brewster. Sincé Brewster’s arrest was legal, Lt. Hawk'i'ns had the right to search Brewster’s car; Com. v. Philips,
It cannot with reason be argued that Woods’ arrest was illegal and therefore the information Lt'. Hawkins gathered from questioning him could .not be used as a‘ basis for arresting Brewster without a warrant. Only Woods could complain that his arrest-was illеgal and from this record it does' not appear that Woods made any complaint that the police officer did not give him the name of the informer.
Since we have reached this conclusion, it is not necessary to discuss the question of whether the сourt should have submitted under an appropriate instruction whether Brewster consented to the search of his car. However, in passing we might say the evidence of Lt. Hawkins and officer Tinsley shows that Brewste'r did consent for Hafvkins to- open the trunk of 'his car.
For the reasons given , the judgement is affirmed.