204 Ky. 439 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
This is an appeal from a judgment of conviction for unlawfully transporting intoxicating liquors. The only witness for the Commonwealth was J. C. Cray, town marshal of London, Ky., who stated that he learned that defendant and another had gotten a huggy at a livery stable and gone to the country. Witness supposed the defendant would return with liquor. Without procuring a warrant, witness went out and met defendant with the intention of arresting and searching him and the buggy. It was dark and he undertook to stop the horse, and flashed a flashlight before arresting defendant. This frightened the horse and caused it to shy to the side of the road and throw the buggy and its occupants over an embankment. Witness went to them and found defendant holding a-jar, which he seized, and on opening it found it contained
It thus appears that, while witness’ chief purpose was to search the defendant, he sought to accomplish that end by first arresting him for an offense committed in his presence. While it is not necessary for an officer to be in possession of all the details of a concealed offense being-committed in his presence in order to arrest without a warrant, manifestly, he may not make such an arrest on mere suspicion and without any knowledge of the facts. This is what the witness attempted to do and what he partially accomplished. That action was. illegal in its inception and consummation. In making such illegal arrest, by a fortuitous circumstance the evidence he sought was uncovered before the arrest was accomplished. This does not validate the illegal transaction, which must be considered in'the same light as it would be if the arrest had been completed before the search was made.
Under repeated decisions of this court evidence so secured is inadmissible. This being the only evidence offered the court should have given a peremptory instruction to find defendant not guilty.
Wherefore, the judgment is reversed and cause remanded for proceedings consistent with this opinion.
