194 Ky. 480 | Ky. Ct. App. | 1922
Opinion of the Court by
Affirming.
To reverse the judgment appellant Royce assigns as grounds the insufficiency of the affidavit upon which the search warrant was issued, and the insufficiency and invalidity of the search warrant, from which it results that all the evidence offered for the Commonwealth tending to prove the guilt of appellant was incompetent, as he contends, because said evidence was obtained through an illegal search warrant.
It appears from the record that appellant and Kinnaird had obtained a large quantity of moonshine whiskey near the Kentucky-Tennessee state line and were transporting it in a car through Monroe county in the direction of Glasgow at the time-the affidavit upon which the search warrant was made and the search warrant issued. The bill of exceptions contains a concise statement of all the evidence introduced for the Commonwealth, which is as follows:
“Overtook defendant and Kinnaird on the Glasgow and Tompkinsville pike, about two miles out of Tompkins-ville; that at the time Kinnaird was in the machine at the steering wheel and defendant Royce was cranking the machine; deputy sheriff told him several times to stop cranking the machine and defendant looked up and turned around and I told him we were officers and he stopped; that Bryant drew a pistol on Royce before Royce let loose of the crank. That Kinnaird. asked the officers not to destroy his liquor; that he had suffered losses and was trying to get on his feet and could not stand the loss of the liquor; that Royce said: ‘Harry, they have got us, let’s go with them; you know the liquor is ours;’ that they found from eight to twelve gallons of liquor in the possession of said Kinnaird and Royce in the machine. ’ ’
It appears from-the foregoing synopsis of the evidence that when the deputy sheriffs found the appellant and Kinnaird on the public highway with the Ford car, appellant was cranking the machine in an effort to start it. Kinnaird was at the wheel. When the officers placed appellant and Kinnaird under arrest, Kinnaird asked •the.officers not to destroy his liquor and said to them that he had suffered losses and was trying to get on his feet and could not stand the loss of the liquor. About the same time appellant Royce in speaking to Kinnaird said: “Harry, they have got us; let’s go with them. You' know the liquor is ours. ’ ’
Following this the bill of exceptions contains this statement: “that they (the officers) found from eight to twelve gallons of liquor in the possession of said Kinnaird and Royce in the machine.” There was sufficient evidence to carry the case to the jury, aside from the finding of .the liquor in the machine. Both Kinnaird and appellant Royce had confessed to the officers that they were transporting, the liquor and asked that it be not destroyed. While the evidence shows that “they found from eight to twelve gallons of liquor in the possession of said Kinnaird and Royce,” it is not shown, and we will not presume, that any search was made by the officers of the machine, or of Kinnaird or Royce for the purpose of discovering the whiskey. ;So far as the record shows the liquor was not offered in evidence. ■ Moreover it must be presumed from the record, which is silent on the subject, that the whiskey was in-public view and that the officers did not have to and did not in fact make a search of the car in order to discover that the appellant and Kinnaird were transporting liquor in the machine. Where the possession of the unlawful thing is open and obvious so that any one within reasonable distance can readily and plainly see it, no search warrant is necessary, and the evidence thus obtained may be received upon the trial of the accused. Bowling v. Commonwealth, 193 Ky. 642.
_ As it is impossible to say from the record that the trial court allowed the introduction of incompetent evidence — evidence obtained through an unlawful search and seizure, granting that the search warrant was insufficient — there being sufficient competent evidence to carry the case to the jury and to sustain the verdict, no error is perceivable and the judgment must he and is affirmed.
Judgment affirmed.