Allen v. State

• Decision Date: 28 June 1930
• Parties: ALLEN et al. v. STATE.
• Court: Tennessee Supreme Court

29 S.W.2d 247

161 Tenn. 71

ALLEN et al. v. STATE.

Supreme Court of Tennessee.

June 28, 1930

Appeal from Criminal Court, Jackson County; Harry Camp, Judge.

Hickman Allen and others were convicted of manufacturing whisky, and they appeal in error.

Affirmed.

Bailey C. Butler, of Gainesboro, for complainants.

The Attorney General, for the State.

COOK J.

Plaintiffs in error were convicted of manufacturing whisky, fined $250 each, and each imprisoned for six months. It is urged that the conviction should be reversed (1) because the evidence obtained through an unlawful invasion of the premises and by an unlawful search and seizure was erroneously admitted over the objection of plaintiffs in error, and (2) for error of the trial judge in refusing to submit to the jury the determination of whether or not the facts disclosed an unlawful invasion of premises occupied by the accused parties.

Evidence illegally obtained by the state through unlawful search and seizure is excluded upon objection duly made. Hughes v State, 145 Tenn. 544, 238 S.W. 588, 20 A. L. R. 639. The reason for the rule thus applied is given in the case of State v. Bass, 153 Tenn. 170, 281 S.W. 936.

Whether or not the evidence was unlawfully obtained, and for that reason inadmissible, is to be determined by the trial judge not by the jury. Tenpenny v. State, 151 Tenn. 669 270 S.W. 989. Assignments of error for the refusal of the trial judge to submit this judicial function to the jury are without merit.

Relying upon Welch v. State, 154 Tenn. 60, 289 S.W. 510 plaintiffs in error insist that the trial judge erroneously admitted evidence obtained by the officer, through an unlawful invasion of their premises.

The still which the defendants were operating when arrested was located by the officers at the end of a sled trail that led them a half mile up a hollow. It was on inclosed pasture land, on premises owned and occupied as a home by Mrs. Haynie, the widow of Willis Haynie, deceased. Ted Haynie was her son and Hickman Allen her son-in-law, and both lived in the house with Mrs. Haynie, but there is no evidence that they or their codefendants were either in actual or constructive possession of the inclosed pasture where they were found engaged in manufacturing whisky.

The constructive possession was in the owner, Mrs. Haynie, and there being no evidence to the contrary, it must be assumed that she also had actual...