Thacker v. Commonwealth

Jun 17, 1949
Reporters:
, ,
Before:
Bees

Opinion of the Court by

Judge Bees

Sever sing.

Thе appellant, James Thacker, has been sentenced to imprisonment for a term of two years after conviсtion for carrying concealed on his person a deadly weapon. He seeks reversal of the judgment on several grounds, but complains principally of certain evidence which was admitted over liis objections. He was arrested at Pine-ville in Bell County on July 2, 1948, by John Hoskins and Lawrence Bice who testified that they searched bim and found a 38-calibre pistol concealed in his right trousers pocket. Appellant admitted that he had the pistol on his person, but denied that it was cоncealed. He testified that the pocket in which he carried the pistol was shallow, and that the handle of the pistol was exposed. Neither of the arresting persons was a public officer, and it is first argued that they had no information sufficiеnt to authorize a private person to arrest the appellant for a felony.

The evidence discloses thаt a strike of the employees of the Cumberland Coach Line was in progress, and the bns company was endeavoring tо operate its buses with drivers who were not employed by it when the strike began. ‍‌‌​​​‌​‌‌‌‌‌‌​​​‌​‌​​​​‌‌​‌‌​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌‍About 8 a. m. on July 2, 1948, one of the buses driven by a man namеd Hendrickson was fired into from ambush while the bus was crossing the mountain from Straight Creek to Bed Bird Biver, and Hendrickson was *704 killed. A two-toned Kаiser automobile bearing a Tennessee license was seen leaving tbe scene of tbe killing. News of tbe. murder spreаd rapidly, and the description of the car, including the number on the license plate, was given out by state, county and city police officers with directions that anyone seeing the car should stop it and arrest the occupants. Lawrence Rice, uncle of the deceased bus driver, went from his home in Lynch, Harlan County, to Pineville, where he learned the particulars of the crime and the description of the automobile from the sheriff of Bell County, the police officers оf Pineville, and members of the state patrol. He testified that he was directed by the officers “to watch for a Frazer or Kaiser car, a two-toned car, bearing Tennessee license and pick him up anywhere at any time.”. Rice, aсcompanied by John Hoskins, local manager of the Cumberland C.oach Line, began patrolling the roads near Pine-ville, and about 4 p. m. saw a car answering the description given them. They followed the car through Pine-ville, but did not overtake it. About 8 p. m. they again saw the car as it was leaving a filling station in Pine-ville. They stopped it and arrested the occupants who were the appellant, two women, and Clyde Spence. Appellant was driving the car. The facts in possession of Hoskins and Rice constituted reasonable grounds for believing that appellant had committed a felony and authorizеd them, although they were not peace officers, to make the arrest. Section 37, Criminal Code of Practice.

It is suggеsted in brief for the Commonwealth that the evidence obtained by the search was competent, although obtained through some form of trespass, since section 10 of our Constitution, ‍‌‌​​​‌​‌‌‌‌‌‌​​​‌​‌​​​​‌‌​‌‌​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌‍against unreasonable search and seizure, is directed аt the sovereignty, acting through its public officers, and not at private individuals. Chapman v. Commonwealth, 206 Ky. 439, 267 S. W. 181, is cited. There, it was held thаt as against a private individual the aggrieved party is left to his remedy in trespass, but in Copley v. Commonwealth, 219 Ky. 498, 293 S. W. 981, it was held, in effect, that a private individual, acting in concert with or at the direction of a peace ‍‌‌​​​‌​‌‌‌‌‌‌​​​‌​‌​​​​‌‌​‌‌​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌‍officer, is subject to the рrohibitions of section 10 of the Constitution. Cf. Gilliam v. Commonwealth, 263 Ky. 342, 92 S. W. 2d 346. Furthermore, a private person *705 making an arrest pursuant to section 37 of the Criminal Code of Praсtice is acting for and on behalf of the sovereignty.

It was proper for the Commonwealth to introduce evidencе to show that the private individuals who made the arrest had reasonable grounds for believing that the person arrested had committed a felony, but the Commonwealth went farther and introduced evidence concerning the murder which had no bearing on the right of Hoskins and Rice to make the arrest. Rice was asked: “Did you believe or have information that he (apрellant) was connected with the other matter?” and he answered: “I did, and (he) was indicted for it.” The indictment was returned after the arrest, and, of course, had no bearing on Rice’s right to arrest appellant. The court erroneously overruled the motion to strike the answer of the witness. The Commonwealth introduced the County Attorney of Bell County who testified that he made аn investigation of the murder of the bus driver and directed Rice and others “to pick up this two-toned ‍‌‌​​​‌​‌‌‌‌‌‌​​​‌​‌​​​​‌‌​‌‌​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌‍car and Jim Thacker, we hаd information he was driving this two-toned car, and I told them whether he was an officer or not to stop this car and arrest anybоdy in it.” Later he was asked: “Was your investigation such as to indicate he (appellant) was involved in this killing?” An objection to the question was overruled, and the witness answered: “It was.” Under the circumstances of this case, this testimony was highly prejudicial. It drew the аttention of the jury to another crime which had aroused bitter feeling, in the community, and was wholly irrelevant to the offense fоr which appellant was being tried. The opinion of the County Attorney as to the guilt of appellant of the murder of Hendriсkson had no bearing on the right of Hoskins and Rice to make the arrest. The evidence does not fall in any of the exceptions to the general rule that proof of another crime is error. Jones v. Commonwealth, 303 Ky. 666, 198 S. W. 2d 969; Hickey v. Commonwealth, 185 Kv. 570, 215 S. W. 431.

Appellant complains because the court refused to grant bim sufficient time at the conclusion of the evidence to obtain from his homе in Middlesboro the trousers he wore when he was arrested. He claims they would *706 have shown conclusively that the pistol cоuld not have been concealed. This ground need not be ‍‌‌​​​‌​‌‌‌‌‌‌​​​‌​‌​​​​‌‌​‌‌​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌‍considered, since the judgment must be reversed because incompetent evidence was admitted.

The judgment is reversed with directions to grant appellant a new trial.