192 Ky. 153 | Ky. Ct. App. | 1921
Opinion of the Court by
— Certifying the law.
The appellee, Clyde Riley, was jointly indicted by the g'rand jury of Anderson county with Virgil Miller, in which indictment they were accused of “feloniously having in their possession tools, implements and other things used by burglars for housebreaking and forcing doors and locks and places where goods, wares and money are kept with the intention of using said tools and other things burglariously,” an offense denounced by section 1159 of the Kentucky Statutes. Upon his separate trial
As we understand the record the principal questions involved and the ones which influenced the court in directing an acquittal are: (1) That the sheriff who arrested the defendants under the indictment, but before it was returned, not having a warrant to do so was without authority to make the arrest, because of which (2), the alleged burglarious tools and other articles found in the possession of appellee and his co-defendant, Miller, were incompetent as evidence against him under the principles laid down by this court in the recent case of Youman v. Commonwealth, 189 Ky. 152, and by the Supreme Court of the United States in the still more recent ease of Gouled v. United States, 41 Sup. Ct. Rep. 261; — U. S. —, 65 L. ed. 311; and a possible ground (3) was, that the tools found in the possession of the defendants in the indictment by the officers when they were arrested were not such as could, within the contemplation of the statute, be characterized as “burglar’s tools.” We will dispose of these ground as briefly as possible in the order named.
1. Subsection 2 of section 36 of the Criminal Code authorizes a peace officer to 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 feloiny. ’ ’ There being no warrant in this case, and no felony committed in the presence of the officer, the subject matter of inquiry is narrowed to the question, whether the officer at the time he arrested the defendants in the indictment had reasonable grounds to believe that they had committed a felony. The arrest was made between 12 and 1 o’clock at night. The defendants were first seen together in a buggy on a private road leading from the turnpike to the Bond & Lillard distillery and warehouses adjacent. They were coming from the direction of the
The question, therefore, is, whether the sheriff under these facts, all of which he knew before he arrested appellee, had reasonable grounds to believe that the occupants of the buggy had committed a felony, either (a), by having actually broken into a warehouse and obtained whiskey, which possibly was in some of the vessels which they had with them, or (b), by having in their possession the character of tools with which similar burglaries had been committed and that if they had not actually committed burglary that they intended to do so.
What constitutes reasonable grounds justifying, an arrest without a warrant is thus very aptly stated in 5 Corpus Juris, 417: “The reasonable and probable grounds that will justify an officer in arresting without a warrant one whom he suspects of felony must be such as would actuate a reasonable man acting in good faith. The rule is substantially the same as that in regard to probable cause in actions for malicious prosecution, and .there is no difference in its application between arrests for felonies and arrests for misdemeanors. The necessary elements of the grounds of suspicion are that the officer acts upon a belief in the person’s guilt, based either upon facts or circumstances within the officer’s
(2) From the foregoing it results that neither the principles announced in the Youman case, nor in the Gouled case apply, since the essence of those opinions is that the search resulting in the development of the contested evidence must be either a forcible one involving some coercion on the part of the officer, or it must be made after admission gained to the searched premises through stealth and deception so that the search would be against the will or consent of the defendant. Such was the holding in the Gouled case and we so interpreted the Youman case in the later ones of Banks v. Commonwealth, 190 Ky. 330, and Turner v. Commonwealth, 191 Ky. 825. All the books and all the cases agree, including the Youman case, that evidence found by searching the defendant when he is lawfully arrested may be used
3. Disposing of the possible ground' (3i) as one influencing the court in sustaining appellee’s motion for a peremptory instruction for the jury to acquit him, we have only to say that the tools or implements and other things in the possession of the defendant, in this character of prosecution, need not be articles specially manufactured and designed for the use of burglars alone, but they may be any tools, implements or thingis which in the language of the statute are “used by burglars for housebreaking, forcing doors, windows, locks, or buildings,” etc., although they may be such as are adapted for use in the accomplishment of lawful and legitimate. purposes. If the language of the statute should be construed so as to require that such tools, etc., should be specially manufactured and designed for burglarious purposes, we doubt if any defendant could ever be convicted under the statute, not only because, as we surmise, that there is no such manufacturing establishment, but also because of the great difficulty which the Commonwealth would encounter in proving that fact, to say nothing about the strained construction of the statute which that interpretation would require. If the tools are such that they may be used to commit burglary, and the circumstances be such as to lead a reasonably prudent man to believe beyond doubt that the intention of their possessor was to use them for that purpose, the offense is complete. We feel that this interpretation of the statute is so plain as to need no fortification of authorities. But all the courts before which the question has been presented, so far as we are able to learn, have adopted the same view, as will be seen from an extended note to the case of State of Wisconsin v. Boliski, 50 L. R. A. (N. S.) 825. In that note it is .stated that “It is not necessary to prove that all the implements, mentioned in an indictment be adapted to effect the objects charged,” and that “If they are suitable for the purpose, so that they can be used to break and enter burglariously, it is wholly immaterial that they were also designed and
That the intention of appellee and his co-defendant to so use those articles and the tools found in their possession there can be but little doubt in our minds, from the testimony of appellee’s co-defendant, Miller, which is corroborated by other testimony in the case but which We deem unnecessary to point out. As was to be expected he was a most reluctant witness for the Commonwealth and on every hand tried to shield the appellee by the suppression of any guilty fact against him, and it was only after a most rigid examination that he was made to tell about the future plans of himself and the appellee with reference to entering the warehouse with the tools which he claimed to have found the evening before in a clump of bushes nearby it. He also tried hard to conceal the fact of appellee’s knowledge of the arrangement with the watchman Husbands, and in parts of his testimony he made the unbelievable statement that appellee’s, act in accompanying him that night was no more culpable than to see if whiskey was contained in the .oil cans and other receptacles alleged to have been hidden in the bushes. Under such circumstances one
Wherefore, this opinion is certified as the law of the case.