203 Ky. 621 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
Appellant prosecutes this appeal from a judgment of the Barren circuit court sentencing him to one year’s confinement in the penitentiary upon a second conviction of the offense of unlawfully possessing intoxicating liquor. His sole ground of complaint is that the evidence establishing his guilt, and to which he objected and excepted when introduced, was incompetent because it was obtained by an illegal search in violation of section 10 of the Constitution of Kentucky.
Appellant’s bad reputation for bootlegging was proven by numerous witnesses of high standing; his previous conviction of the same charge was shown by the .court records and his guilt of the present offense was established by the testimony of the deputy sheriff who made the arrest. Appellant did not testify for himself or offer any evidence in his own behalf.
This court has repeatedly held that evidence secured by an illegal search is incompetent.. In order to determine whether or not the evidence upon which appellant was convicted was illegally obtained it will be necessary briefly to review the facts.
But one witness, W. J. Combs, testified to the facts constituting the offense. He testifies that he was a deputy sheriff and nig’ht watchman in the city of Glasgow, and that about one o ’clock in the morning on a certain day in January, 1924, while making his regular rounds as such night watchman, he heard a terrific noise, like something falling, about 100' yards distant from him. The noise sounded like breaking glass and he says he “reckons it was a flue fell on a roef.” After hearing this noise he proceeded to his next post, where he punched the clock, and he then went on down towards the place from which he thought the noise came. As he was passing the home of a man named’ Johnson the latter called to him and asked what the noise was; he replied he didn’t knew and propounded the same question to Johnson and asked him
'It. is earnestly insisted for the Commonwealth that the witness in the performance of his duty as a peace officer in investigating the unusual noise which he heard, had a legal right under the circumstances to enter the building through, the open door and to knock upon the door of appellant’s room; that this being true, the fact that the door came open when he knocked upon it, thus disclosing appellant in the possession of moonshine whiskey, was not the result of an illegal act upon the part of the witness. With this we cannot agree.
The evidence is not clear as to the character of the building in question, whether open to the public or otherwise, but it is shown that it was occupied by a restaurant and was used for other purposes. Nor does it appear through what part of the building the witness entered and passed to reach appellant’s room, but in the absence of any evidence to the contrary we may assume the witness was within his legal rights in entering the building
££Q. How far were you from where the defendant’s room was when you heard this noise? A. Over here in front of Rich’s store.
££Q. About how far is that? A. A hundred yards, I reckon.
“•Q. What kind of noise was it? A. Sounded sort of like glass breaking or something, I reckon it was a flue fell on a roof.
“Q. What did you do when you heard the noise ? A. I went to the Christian church and made my punch up there.
££Q. Punched the clock? A. Yes, sir. . . . After I made my punch I went down in front of Johnson’s.
££Q. What for? A. To find out what the noise was.
££Q. What were you investigating, if anything. A. To see what the noise was, to find out what it*625 was; Johnson hollered ont the- window and asked me where it was and I asked him where did it sound to him like it was and he said in the hall.
“Q. If there was a thief there, were you looking* for them? A. I was looking* to see what the noise was, trying to locate that.
“Q. What did you do when you got to that building? A. Went back through the Hall.
“Q. Was that the place where you heard the noise? A. It was where Johnson said it sounded to him like it was.
“Q. Did it sound to you like it was there? A. Yes, sir.
“Q. What were you looking for when you knocked the door open — still investigating the noise? A. Yes, sir, I asked him when he woke up what that noise was.
“Q. Now, then, Mr. Combs, at the time you went there in this Hall around through this building and went in this room where you found this liquor, did you believe at the time the house was being broken into? (Objected to; objection overruled.) A. Yes, I thought somebody was breaking in from the noise and racket.
“Q. Was that what you were investigating? A. Yes, sir.
“Q. Is that the reason you went in this room? A. Yes, and I asked him that when I got in the room.”
In spite of the leading* and suggestive questions of the Commonwealth’s attorney it will be seen from the above excerpts from the testimony that the witness en-, tered the home of the appellant for the purpose, at most, of investigating the noise he had heard and not for the purpose of investigating a supposed felony. It is likewise perfectly patent that the noise which constituted the offense was not committed in his presence, for he stated that it was a hundred yards distant and he did hot know where it came from. If justified in entering the room in which the appellant resided, he would have been equally justified on the same ground in entering any of
“The people shall be secure in their persons, houses, papers and possessions from unreasonable search and seizures.”
Having reached this conclusion, it follows that the evidence so secured was incompetent, and appellant’s objection thereto should have been sustained. There being no other evidence of appellant’s guilt upon the trial of the prosecution, appellant’s motion for a peremptory should likewise have .been sustained, and for these errors the judgment must be reversed for a new trial consistent with this opinion.
Judgment reversed.