53 Ky. 395 | Ky. Ct. App. | 1854
delivered tho opinion of the court.
A sheriff, or other officer authorized to execute criminal process, may lawfully break open the door of the house wherein the person dwells, whose personal arrest. is directed by the writ, and enter and search the dwelling to find the offender; and if hindered or obstructed by other persons in his attempt to make such entrance and search, they would be guilty of the offense for which the defendants in this case have been indicted, although, at the time of such attempted entry and search and obstruction, the accused party may not have been in the dwelling, and though, therefore, such entry and search may not have been necessary to make the arrest.
The right to break open the outer door to make the entrance, of course includes the right to break open the doors of the different rooms and chambers, in the house to make a thorough search throughout the premises; and though the defendant in the process be not found, or shown to be in the place of his dwelling at the time, yet such entrance and search of the officer, having valid criminal process in his hands, would not therefore be unlawful, or make him a trespasser; but to obstruct the officer in such case would be unlawful, and the parties making the obstruction would subject themselves therefor to indictment and
It is true, that with civil, instead of criminal pro-‘'| cess in his hands, whether the state or a private per-/ son be the plaintiff in the writ, and though it author/ izethe arrest of the defendant, the sheriff cannot break open the outer door of his dwelling without first hav-l, ing requested the door to be opened, and at the same, time disclosing the purpose of his request; but the rule is different with regard to criminal or penal pro- ¡ cess, requiring the capture and arrest of the alleged ; offender. The fact that the house entered and searched is at the time the place of the dwelling of the defendant in the-writ, gives sufficient warrant to the sheriff, though it be not known to him certainly whether the offender be or not then in the house, or be found therein, and the law does not require that the officer should first signify his business and demand admission before entering and searching; for such disclosure of his purpose, and demand of entrance, would in many cases defeat the very object in view, by giving the offender notice of his danger, and an opportunity of effecting his escape.
It is not necessary, for the sheriff’s justification, that the dwelling house entered and searched should be the property of the defendant; it is sufficient if it be a house,' thougn belonging to and inhabited by another, in which the accused party dwelt at the time, See Bacon, supra, and also, 33 see. and 1st art. of chap. 91, pago 617, Revised Statutes, by which it is provided, that “in executing penal or criminal process, requiring an actual arrest, the sheriff or other officer may break open the outer, or any other door of the dwelling, or any other house of the defendant.” By the dwelling of the defendant is meant the house inhabited by him, the one in which he dwells, and though owned and also inhabited by another, or several others at the same time, it is nevertheless the dwelling of the defendant, or the house in which he
The first instruction asked by defendants was refused, and rightly, because by it the court was required to tell the jury that the process in the sheriff’s hands did not authorize him or his posse to search the house of King at all, which, if given, would have denied to the sheriff the right to enter and search King’s house with valid criminal process against Smith, requiring his arrest, r lT'.ough Smith dwelt in that house, and might have been in the house at the time when the search was offered to be made.
The second instruction demanded by defendants to the indictment, ought to have been, as it was, refused, because it denied the right of the sheriff to search the house of King, and in which Smith, the party to be arrested dwelt, unless he was actually in the house at the time, which is not the law as understood and now ruled by this court.
But the circuit judge erred in giving the second instruction to the jury, at the instance of the attorney for the state; by it the jury are in substance told, that if the defendants in the lower court agreed and consented that the sheriff and his posse might search their dwelling houses, respectively, (in neither of which did Smith reside,) that then tbe defendants should be found guilty, if from the proof they believed they afterwards willfully obstructed them whilst making the search. This instruction cannot be sustained because it is not in accordance with the common law, or the law of this state above referred to, on page 617 of the Revised Statutes1, which is believed to be in conformity with the former, and by which it is provided that the dwelling, or any house of any other person, may be broken open, entered, and searched by the sheriff only, when and “if it be necessary to enable him to make the arrest.” So that a sheriff, even with criminal or penal process, requiring an actual arrest, cannot break the outer and inner doors to enter and search the dwelling houses of other persons, unless the person to be arrested be actually in the house at the time of Ihe entrance, so as to create a necessity to make