*1 police making They offender, and, consequently, quite officers. authority damaging. search under a search warrant affidavit, pursuant an issued to the relevant appellant’s attempt explain to As to portion of which follows: purse possession how came into it David obtained from “Information cannot doing said that in so he waived Kentucky and Arlington, Dubock of the erroneous introduction of the evidence. Paducah, Kentucky Tomes of Wendell Once the evidence was admitted he was items furnished information try explain away, pre forced it or to to cos- premises such as described below tend it an was not there. What he did was metics, pipes, watches, stolen jewelry are attempt original to rebut been seen items and these items have such did not constitute waiver. John *” ** the affiant. Commonwealth, v. son S.W. objection failed The is that affidavit and when the information state how judgment The is reversed. informants, when
was obtained the stolen how the affiant observed MILLIKEN, PALMORE and STEIN- articles. v. Williams FELD, JJ., concur. it is Ky., (1962), we said 355 S.W.2d on “well that an affidavit based settled is defective unless
formation belief
discloses when the observation was We held that a search the informant.” fails based such an affidavit
warrant on through
and the evidence obtained
inadmissible. STONE, Appellant, B.
Bernes clearly de here is affidavit fective, reliance and the warrant issued in Appellee. Kentucky, COMMONWEALTH is likewise defective. When thereon alleged, fact on the basis Appeals ultimate even Court observation, must personal the affidavit Feb. 1967. Henson fact state when the was observed. Rehearing Oct. 1967. Denied concerning the the evidence follows that purse during the unlawful found do so have been admitted. To
should not prejudicial error which
rights prosecuting wit- that the
It is no answer attempt- or that identified
ness explain away possession of
ed the introduction of
purse. Except for linking appellant
purse, prosecuting
to this crime was (several an alibi defense was
witness. His away at 12 miles him
people said saw place). took
the time offense purse cor- was evidence
introduction the accused was
roborating the witness *2 directly ques- into the numerous
goWe by appellant reversal tions relied on stating following after salient facts dispute. fire about there is no *3 18, 1964, two-story in a January occurred appellant did not but building, which own in the floor of which was rented and first appellant in a use connection with retail left jewelry Appellant the business. store m., about 5:00 the fire was discov- approximately thirty ered minutes later. debt; in his business not thriv- ; ing large and he insurance policy pre- on his merchandise months vious to the fire. the
First it is insisted jury have the on the should instructed question of whether consented premises. the search of ruined John Kennedy, private investigator A. All- for appellant’s Company, state in- surer, testified to his consented inspection after fire. premises by appellant. argued This is denied Mattingly in the rule Common- wealth, Ky. 710, requir- 343, 259 S.W. question ed the submission of this jury. find no the rule We fault with Mattingly; but for to be later dis- reasons nice cussed herein in with the connection constitutional of evidence obtain- from distinguished ed citizen as law, evidence obtained officer of apply rule in necessary will not Mattingly. was the failure
Assigned error as toAull Randall trial court to allow Owensboro, William Rummage, E. ad appellant. This witness testify at the time courtroom mitted he was Gen., Atty. Robert D. Matthews, Robert on be testified his fellow firemen two of Preston, Atty. Gen., Frankfort, Asst. An au order half of Commonwealth. appellee. pro duly entered CR 43.09was thorized witnesses viding for the exclusion courtroom. This section HILL, Judge. Rules, predecessor 601 of as well Code, Appellant uniformly con previous was convicted and has sentenced years prison dis give judge to four the trial a broad under an indictment strued to charging permitting or refus maliciously burning him with cretion in the matter of testify building, permit store a witness to who denounced KRS 433.020. ruling of the Phelps, Murphy Complaint rule. violated the empanelled court, jury after C.J. sworn, allowing Commonwealth Trial S. original the indictment. amend “setting charged with dictment Aull in avowal of the witness known burning storehouse fire to three dicated he was one of the 433.- KRS listed as Stone Jewelers” floor, firemen who reached the second following added amendment 020. The in where Commonwealth’s witnesses pro- “aided, counselled charge: That “accelerant” have ema ferred fumes must storehouse,” and burning of a cured nated from. Aull’s avowal stated the statute. cited again not smell fumes from second floor win *4 dow, long stay but he said he too “didn’t may be amended indictment An then,” bellowing because the smoke out came “any verdict” time before RCr 6.16 under told” “Captain and hollered and Freeman de rights “substantial providing the him “to come off This testi the ladder.” prejudiced.” Instruction not are fendant mony slight tendency had a to contradict language one followed the number negative testimony fellow of his statute, the verdict found and firemen, who said not notice did view, our In instruction one. guilty under testimony But the fumes. nature of Aull’s were defendant rights of the the substantial convincing require not so vital or as to by the amendment. prejudiced not Certainly, the trial court to allow it. 378 Brown say cannot the trial judge his discre abused Hines and (1964) 608 event, any tion. In order for exclu 152 Ky., 390 S.W.2d sion violated, and it was within assigned sound discretion of the trial court to allow error to the fifth brings us This permit testify. or not all the the witness to in which he by appellant, contends Kennedy testimony of the witness A. John the rea- been admitted not have should Next contends the court premises without Kennedy son searched his erred in allowing the introduction warrant. a search consent and without Commonwealth of photographs certain “charred wood.” Appellant moved for the this ar- to counters The Commonwealth production by the Commonwealth of all got the first, Kennedy saying, gument by photographs and articles to used on the be appellant; sec- by “consent” of evidence pursuant provisions of 7.24. RCr position ond, by taking the untenable The Commonwealth produce a number prem- possession of the no appellant had of articles and some photographs, but the fire, possession and that ises after “charred wood” was at that time route third, en landlord; and appellant’s reverted to from Chicago, Illinois, testing representative Kennedy, being a was not delivered to attorney individual,” and “private awas Allstate, fact, In these items possession citi- private as a him of Allstate Company its the Con- ten of not section zen does violate agent. Appellant, himself, authorized All amend- Kentucky fourth or the stitution possession state to take of the “charred the United the Constitution of ment to wood,” although he denied this at the trial. States. event, any had the under right production the Common part RCr 7.24 for the first of these arti answered Furthermore, cles. argument will counter cannot be said that wealth’s argument. the articles third by appellant desired the discussion “were possession relative argument, of” the counter Commonwealth at The second charred time the motion the wrecked possession made under RCr 7.24. 650 465, 574, (1921), 1048 It is sufficient 65 L.Ed.
building, without merit. S.Ct. least say possession at and our had own state him re- to enable for a reasonable time Am.Jur.2d, Also in 16 Constitutional destroyed any property by fire. cover not Law, 960, section is written: long may possession for as have paid a new build- as the rent was or until general “It rule that is the established provisions process could be constructed. of the due clause in a in the Fed- state constitution and argument The third counter upon the eral Constitution inhibitions are ju in this may merit. But one have power government agencies, risdiction, others, ob many and in upon of action of freedom by private individuals tained persons.” under observation not been excluded jurisdiction This has continued to fol- and the ten of our section Constitution Chapman, supra, low in Gilliam v. Com- the Constitution fourth amendment to monwealth, Ky. 342, Chapman v. Com the United States. See and in many other also the re- cases. See monwealth, 267 S.W. cent case of Goldberg, United States v. quote: which we Cir., (1964), 330 F.2d certiorari denied *5 that that “It often been written 1, July nothing can discern at We the sov- directed at (10) section present justify or on the a horizon to de- public of- ereignty, through its acting parture from sound constitutional law the ficers; thus disclosed and the evidence supra, Chapman, announced in and later illegal public in an officers cases. is without reluctance that we fol- incompetent seizure has been declared low that rule. the against to the end that the defendant may be made provision Appellant he is entitled to constitutional contends left alone if he was reversal effectual than for failure of the trial court more of- remedy trespass against the sustain to his his motion for a new on the however, held, ground by jury the reached its lot. ficer. It has never verdict applicable private Appellant to a filed of three of the to embrace affidavits spy- jurors; who, process of filed through a the Commonwealth affidavits individual trespass, jurors. Appellant’s discloses of eleven affi or other form of Manifestly as against davits did fix the at which each evidence another. time juror ag- separate slips paper against private individual submitted on such preference remedy length his party is left to for the of term of grieved sentence. trespass.” The affidavits for Common balloting wealth showed the did not take treated in 50 The rule discussed is above place jurors until all had voted twelve manner: A.L.R.2d, in this unanimously guilty that as quotient charged. This did not amount to a exclusionary “The rule stated sec- Commonwealth, verdict. See Cox v. 255 supra, tion 7(a), under which Ky. 391, 74 and Graham v. S.W.2d and seiz- an unlawful search Commonwealth, 221 310 S.W.2d accused, against an ure is not admissible 677, wherein is said: apply has been held not to where unlawful made search was arriving “This method in at verdicts acting individual on his own initiative.” by us. repeatedly has been condemned However, appears, foregoing Cases cited under the section of where it as in the California, case, unanimously jury A.L.R. include those in Mis- stant Missouri, sissippi, agreed upon Oregon, guilt the United of the accused McDowell, quotient States in then arrived at a verdict which Burdeau v. U.S. covering a experience, independently ness with vast subsequently and period twenty years, than jury, of more by members of the adopted all present Hiroshima to was not holocaust at that the verdict have written time, gave convincing evidence meaning of one lot within separate building afire at three Practice.” was set the Criminal Code (3) the fire places. explained that some of by ap The next raised flames down,” indicating “burned sufficiency pellant evi involves ran liquid accelerant followed he was en He maintains dence to convict. and down cracks through the floor is nec Here it a directed titled to verdict. always burns fire walls, and natural essary facts evi to state established point. upward starting from the Appellant’s own brief summarizes dence. properly the trial concluded quote substantially. We jury. Hines submitted the issue to the therefrom: Ky., 390 S.W.2d at about That there was a fire “(1) Commonwealth, Ky., 307 (1965). Baker v. January 18, subse- 5:30 on quently building consumed the con- Jewelry
tents of Stone Store. change of Appellant’s motion for He contends this venue was overruled. oppor- That the had the “(2) pro outlines was error. 452.220 KRS tunity to set the fire. obtaining change of venue. cedure for It states: That there “(3) he could have been
when fire started. application If “(2) defendant, petition in it shall be made “(4) used That there was an accelerant *6 defendant, and writing, verified on the fire. at filing least affidavits kin to or persons, other credible appellant That the “(5) was on cash defendant, stating for the counsel suppliers. basis with state acquainted with the they are that recently That “(6) he had taken out a objected county public opinion Allstate policy substantial insurance with to, verily the state- they and believe Company covering the con- change of petition ments of the for improvements. and tents are venue true.” That “(7) owed a substan- it verified, nor was petition was not The money, although tial sum of he had a copied herewith. sufficient. assets, good many sued and on each of the defendants and "Comes a number of accounts. chang- and for them move court “(8) That if the did not set prosecution and ing of for the venue fire, could have known who and each of them. trial of these actions set it.” is support this at- motion there tached hereto affidavits J. J. may To this list add the evidence Taylor and Parvin Hidenrite.” for the dif- the Commonwealth described burning process ference between on attorney appellant.) (Signed by present wood where accelerant was and an resulting petition burning and referred to from natural The affidavits conclusions; they referred in the coloration of charred stated difference state by burning due and that media but did not wood to accelerant news unfavorable resulting any A The burning wit- facts in connection therewith. without it.
petition, including
affidavits,
question
was ut-
final
raised
The
terly
require
justify
insufficient
ruling
of the trial
concerns
change
juror
Brunner
excusing
prospective
venue. See
v. Com-
court
the.
monwealth, Ky.,
(1965),
Alexander who stated on
dire he had
voir
White v.
personal
394 S.W.2d been a close
friend of
(1965). Appellant
thirty-five
although
thought
contends that the
years,
give
impar
affidavits filed
Commonwealth
he could
both sides a fair and
late;
too
they were filed after the
tial
A
dis
judge
given
trial.
trial
is
broad
petition
change
court
prospective
ruled on his
cretion RCr
9.36 to excuse
juror
venue.
It is not clear whether the court
for cause. See Carson v. Common
wealth,
undertook
Ky.,
to allow the Commonwealth to
It
con
Objection ruling trial court in allowing Gilling- the witnesses detectives,
ham and Phillips, state arson PALMORE, J., dissents. testify after was shown did not PALMORE, visit thirty days the scene Judge of the fire for (dissenting). after the urged fire. that KRS 227.- opinion I portion dissent from that fires) (authorizing investigation of pro- which holds that the constitutional testimony
is unconstitutional and that the
against
tection
unreasonable search
of these two witnesses is too remote due
seizure is of no avail if the search was con-
change
premises.
to a
in condition of the
acting
ducted
at
citizen not
agency of the
the instance of an officer or
inspection
remoteness of
illegal
state.
condones an
When
state
goes
credibility
to-
weight
to be
by using
in a criminal
its fruits
given to their evidence.
prosecution
accessory,
becomes
*7
responsibility
bears the
for de-
ultimate
investigation
is clear
fires
priving
person
the offended
ly proper
police powers
exercise
Const. 10 and the Due Process Clause
the State.
difficulty
We have no
in con
the 14th
the Constitution
Amendment to
cluding that KRS
is constitutional
227.270
him.
guaranteed
the United States have
fourth, fifth,
and does not violate either the
proud
If only
way,
I am
this small
or fourteenth
join
amendments of the Federal
company
Brandéis and Holmes.
Constitution or section ten
dissenting opinion
Constitu Cf.
Bran-
of Mr. Justice
City
tion of
McDowell,
of Louisville v.
déis in Burdeau
U.S.
Thompson, Ky.,
and Moore
13 A.L.R.
S.Ct.
65 L.Ed.
Ward, Ky.,