Hawkins, &C. v. Commonwealth

• Decision Date: 10 June 1854
• Citation: 53 Ky. 395
• Parties: Hawkins, &c. <I>vs.</I> Commonwealth.
• Court: Kentucky Court of Appeals

53 Ky. 395

Hawkins, &c.vs.

Commonwealth.

Court of Appeals of Kentucky.

June 10, 1854.

ERROR TO ESTILL CIRCUIT.

Chief Justice HISE delivered the opinion of the court.

A sheriff, or other officer authorized to execute criminal process, may lawfully break open the door of the house wherein the person dwells, whose personal arrest is directed by the writ, and enter and search the dwelling to find the offender; and if hindered or obstructed by other persons in his attempt to make such entrance and search, they would be guilty of the offense for which the defendants in this case have been indicted, although, at the time of such attempted entry and search and obstruction, the accused party may not have been in the dwelling, and though, therefore, such entry and search may not have been necessary to make the arrest.

The right to break open the outer door to make the entrance, of course includes the right to break open the doors of the different rooms and chambers in the house to make a thorough search throughout the premises; and though the defendant in the process be not found, or shown to be in the place of his dwelling at the time, yet such entrance and search of the officer, having valid criminal process in his hands, would not therefore be unlawful, or make him a trespasser; but to obstruct the officer in such case would be unlawful, and the parties making the obstruction would subject themselves therefor to indictment and punishment, according to law. See 6 volume of Bacon's Abridgement, the first American, from the 6th London Edition, by Henry Gwillim, page 171.

It is true, that with civil, instead of criminal process in his hands, whether the state or a private person be the plaintiff in the writ, and though it authorize the arrest of the defendant, the sheriff cannot break open the outer door of his dwelling without first having requested the door to be opened, and at the same time disclosing the purpose of his request; but the rule is different with regard to criminal or penal process, requiring the capture and arrest of the alleged offender. The fact that the house entered and searched is at the time the place of the dwelling of the defendant in the writ, gives sufficient warrant to the sheriff, though it be not known to him certainly whether the offender be or not then in the house, or be found therein, and the law does not require that the officer should first signify his business and demand admission before entering and searching; for such disclosure of his purpose, and demand of entrance, would in many cases defeat the very object in view, by giving the offender notice of his danger, and an opportunity of effecting his escape.

It is not necessary, for the sheriff's justification, that the dwelling house entered and searched should be the property of the defendant; it is sufficient if it be a house, though belonging to and inhabited by another, in which the accused party dwelt at the time. See Bacon, supra, and also, 33 sec. and 1st art. of chap. 91, page 617, Revised Statutes, by which it is provided, that "in executing penal or criminal process, requiring an actual arrest, the sheriff of other officer may break...