| Ky. Ct. App. | Jun 5, 1923
Opinion op the Court by
Reversing.
Appellant, Veal, is a colored man living with his wife at his home in a colored district of Winchester. On January 2, 1923, the chief of police and tw'o other policemen of-the city of. Winchester called at his house at' nighttime when he (Veal) was away from home, and asked his wife, who came to the door, if Lawrence Green, a colored man from Ohio, was in the house, and upon being told by the wife that he was not in the house the chief of police asked permission to enter the house and search for Green. This she readily consented for them to do. Upon this permission the chief of police and another policeman entered the house and began to search for Green. Be
This court has held in a number of cases that a search made of the home of an accused without a search warrant regular upon its face was unlawful and the evidence so obtained would not be admitted against him on a trial for unlawfully having in possession or selling liquors, or unlawfully having in possession a moonshine still. Mattingly v. Commonwealth, 197 Ky. 584; Youman v. Commonwealth, 189 Ky. 152" court="Ky. Ct. App." date_filed="1920-10-05" href="https://app.midpage.ai/document/youman-v-commonwealth-7146240?utm_source=webapp" opinion_id="7146240">189 Ky. 152; Ash v. Commonwealth, 193 Ky. 452" court="Ky. Ct. App." date_filed="1922-01-20" href="https://app.midpage.ai/document/ash-v-commonwealth-7146968?utm_source=webapp" opinion_id="7146968">193 Ky. 452.
It is earnestly insisted, however, by the Commonwealth that inasmuch as the policemen who went to the rear of the house and.found the mash barrels, which were in plain view, was a competent witness his evidence was properly admitted. This is contrary to the rule recently laid down by this court in the case of Jordon v. Commonwealth, 199 Ky. 331" court="Ky. Ct. App." date_filed="1923-05-22" href="https://app.midpage.ai/document/jordon-v-commonwealth-7148114?utm_source=webapp" opinion_id="7148114">199 Ky. 331.
The Commonwealth undertakes to distinguish this case from the cases in which we have held that evidence obtained by a search without a warrant regular upon its face was incompetent and should be excluded upon motion of appellant by asserting in this case that the officers who obtained permission of the wife of appellant to enter the house and search for G-reen were rightfully on the premises. This question, insofar as it related to the power of the wife to grant permission to police officers to search her husband’s house in his absence, has been
Furthermore, permission was not given, according to the policemen, to search the house for liquor or for a moonshine still, but only given for the purpose of searching for a colored man named Lawrence Green. The police officers testified that they searched several other houses in the colored district for this man before they reached appellant’s house. They were not, according to their testimony, looking for liquor or searching the house for a still. They were searching for Lawrence Green, and asked permission only to make a search for that purpose. They had no permission to make any other search. They therefore had no permission from even the wife to search the premises for a moonshine still. After entering the premises the officers abandoned their search for Green and began to sniff the odor of sour mash. The search was immediately turned into one for liquor and a still. The officers had no search warrant and the search for the still was unlawful. There is some hint that the search for Green was a mere pretext to search for the liquor, and, if so, it was a violation of the constitutional rights of appellant Veal.
Following 'the well-established rules of this court with respect to cases involving search Warrants, we must hold that the evidence offered by the Commonwealth in the court below was unlawfully obtained, and that the trial court erred to the great prejudice of appellant in overruling his motion for a directed verdict in Ms favor.
Judgment reversed for proceedings consistent with tMs opinion.
Judgment reversed.