312 Ky. 645 | Ky. Ct. App. | 1950
Reversing.
Herbert Cline bas been convicted of tbe crime of storehouse breaking, and sentenced to confinement in the penitentiary for a term of two years. He seeks reversal of the judgment on two grounds ;-(l) The only evidence tending to connect him with the crime was obtained by an unlawful search and should have been excluded; and (2) the court failed to instruct the jury on the whole law of the case.
The furniture store of Sam Kirtley in Bowling Green was entered on the night of January 10, 1949, and, among other articles, a Zenith portable radio was stolen. Acting on information received from an anonymous source, the chief of police, accompanied by another policeman, -on the night of January 20, 1949, went to appellant’s apartment which was located on the second floor of a building in Bowling Green. The officers had no warrant of arrest for appellant and no search warrant for his premises. They knocked on the door to ap
The owner or person in charge of a house at the time a search is made may consent to the search, thus waiving the constitutional guaranty against unlawful search and seizure and rendering competent evidence so obtained. Morris v. Commonwealth, 306 Ky. 349, 208 S. W. 2d 58; Banks v. Commonwealth, 190 Ky. 330, 227 S. W. 455. The consent, of course, must be voluntary and not coerced. We find no evidence of coercion in the present case. The sole question was whether appellant consented to the search. The two police officers testified that he gave them permission to enter the apartment and examine the radio which they claimed could be seen from the door entering from the hall, while appellant
The most serious question presented is whether the court erred in failing to instruct the jury on the issue off fact as to whether appellant gave voluntary consent to the search of his home. The general rule is that the competency, admissibility and sufficiency , of evidence is for the court, and the weight, effect and credibility thereof is for the jury. Muncie v. Commonwealth, 308 Ky. 155, 213 S. W. 2d 1019; Kitchen v. Commonwealth, 291 Ky. 756, 165 S. W. 2d 547; Bardin v. Commonwealth, 191 Ky. 651, 231 S. W. 208. However, contrary to the rule followed in most jurisdictions, this court has held, where admissibility of evidence depends upon a preliminary disputed fact question and the offered evidence is practically decisive of the case, the trial court should admit the evidence and instruct the jury on the disputed fact question hearing on its admissibility. In Morris v. Commonwealth, 231 Ky. 838, 22 S. W. 2d 295, 297, the defendant was tried for the illegal possession of intoxicating liquor and convicted. Whisky was found in his automobile after he had been arrested for a violation off the traffic laws allegedly committed in the presence off the arresting officer. The officer had no search warrant. The admissibility of the .evidence concerning the whisky found in the automobile depended on the preliminary question of fact, had the defendant committed an offense in the presence of the officer justifying the arrest and the subsequent search? The judgment was reversed because the court failed to submit to the jury this preliminary fact question with instructions to disregard the evidence concerning the whisky found in the autom©
In Mattingly v. Commonwealth, 202 Ky. 343, 259 S. W. 710, the defendant was accused of possessing a moonshine shill. Parts of the still were found when his premises were searched. The officers had no' séarch warrant, but claimed that permission to make the search was given. This was denied. The judgment of conviction was reversed because the trial court failed to submit to the jury the disputed question of fact as to whether or not the search was made with the defendant’s permission. This rule has been followed consistently in this jurisdiction. Gossett v. Commonwealth, 308 Ky. 729, 215 S. W. 2d 279; Barnes v. Commonwealth, 305 Ky. 481, 204 S. W. 2d 801; Billings v. Commonwealth, 223 Ky. 381, 3 S. W. 2d 770. This is described as an unorthodox practice in Wigmore on Evidence, Third Edition, Vol. 9, section 2550. As heretofore stated, in most jurisdictions the preliminary question of fact as to the admissibility of evidence is solely for the trial judge’s determination, but we are unwilling now to discard the rule so firmly established in our practice.
The judgment is reversed with directions to grant appellant a new trial.