Ash v. Commonwealth

• Decision Date: 20 January 1922
• Citation: 193 Ky. 452,236 S.W. 1032
• Parties: ASH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

236 S.W. 1032

193 Ky. 452

ASH v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 20, 1922

Appeal from Circuit Court, Henderson County.

Buster Ash was convicted of unlawful keeping for sale and transporting intoxicating liquor, and he appeals. Reversed with directions.

F. J Pentecost and J. H. Hart, both of Henderson, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty. Gen., for the State.

THOMAS J.

The appellant, Buster Ash, was tried and convicted in the Henderson circuit court under an indictment accusing him "of the offense of unlawfully keeping for sale and transporting spirituous and vinous intoxicating liquors for other than sacramental, medicinal, scientific, or mechanical purposes, committed in manner and form as follows." The accusatory part of the indictment alleges that he "did unlawfully keep for sale and transport spirituous and vinous intoxicating liquors for other than sacramental, medicinal, scientific, or mechanical purposes, against the peace and dignity of the Commonwealth of Kentucky." The indictment was bad for duplicity in that it accused defendant of the two offenses of keeping for sale such intoxicating liquors and also of transporting them. However, there was neither a motion by defendant for the commonwealth to elect the offense for which it would try him, nor was there a demurrer to the indictment, and, so far as the trial under review is concerned, the duplicity in the indictment was waived.

This appeal by defendant calls in question the competency of the evidence upon which his conviction was had, since it is strenuously insisted by his counsel that the evidence introduced by the commonwealth, which was all that was heard upon the trial, violated the provisions of section 10 of our Constitution, which says:

"The people shall be secure in their persons, houses, papers and possessions from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."

The commonwealth introduced at the trial three policemen of the city of Henderson, who were Ed Bagby, D. A. Howard, and Phil Jones. Their testimony, as contained in the transcript, is in narrative form, and that of the witness Bagby, as presented to us, is:

"That he is a policeman for the city of Henderson, and on the night in question he, not being the regular officer on the beat at the Union Station, went to the station between 15 and 30 minutes before train time; that while he was there he saw a grip or suit case sitting under a seat in the colored waiting room, and in a few minutes he saw the defendant, Buster Ash, go in and set a grip down beside said suit case; that he immediately called upon Officers Howard and Jones to watch said suit cases while he shadowed the defendant; there being two doors or two entrances to the depot, one from the street and one to the train, witness went around the depot to one of these doors, but missed the defendant, who evidently went out the other; the train came in about 15 minutes after that, and after the train had come and gone the three officers continued to watch the grips for about 15 minutes longer, but neither the defendant or any other person came to claim one of the grips or suit cases; whereupon the witness and Officer Howard took the two suit cases in the city patrol car from the depot to the police station, where they opened them and found in them several quarts of white liquid, which looked and smelled like liquor or white whisky; witness did not say he tasted it; that at the time of recovering the suit case no warrant had been issued for the defendant, nor had any search warrant been issued authorizing the seizure of the defendant or the search of any papers, baggage, or belongings of his; that in fact no warrant was issued at the time, but about a week later witness met the defendant on the street and took him to headquarters, where he read a warrant to him that had been prepared since the seizure of the suitcase at the depot, charging the same offense set out in the indictment, at which time defendant denied ownership of the suitcase."

The other two witnesses corroborated him with the additional statement by Howard that he tasted the liquid referred to by Bagby, and that it was intoxicating, and Jones knew nothing of what occurred at the police station, to which place the grip and suit case were removed from the depot. It will be observed that the testimony does not make it clear as to whether the liquor was found in the suit case, or in the grip, or in both. Evidently, if it was found only in the suit case, there would be no evidence upon which the conviction could be sustained waiving all questions of competency; for in that case the guilty contents would come from a receptacle with which, according to the proof, the defendant had no connection, it not being shown that he either owned or that he had ever had it in his possession. On the contrary, according to the witness Bagby, he denied ownership of it.

But, waiving that question and proceeding directly to the determination of the constitutional one presented, we are clearly of the opinion that in the introduction of the testimony by the officers the constitutional protection was violated, and, under the doctrine of the case of Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, and 13 A.L.R. 1303, a peremptory instruction to acquit defendant should have been given. It was held in that case that "the section does not permit any kind or character of search of houses, papers, or possessions, without a search warrant," and that "this constitutional provision, which is broad enough to and does include every article and species of property, was intended to afford the individual, however humble he may be, protection and security against any unlawful invasion of his premises or possessions" by any officer assuming to act under color of his office, and that neither he nor any one else had the right to search any of the property included within the constitutional provision on suspicion, but only under a legally issued search warrant, or without such warrant to search anything found thereon "such as boxes, barrels, drawers, closets or other places, in which articles of property of any kind may have been placed by the owner," although "there may be reasonable grounds to believe that he is guilty of the charge preferred against him or the offense of which he is suspected." It was further held that the constitutional protection extended to and included baggage carried about by the accused, and that a seizure of or search of his baggage without the necessary search warrant was as much unauthorized as a similar search of his residence or premises. Furthermore, it was therein held, following numerous opinions upon the subject, that evidence obtained by the unlawful seizure or search could not be introduced against the accused, nor could a conviction be sustained thereon. We may add that the fact that the seized baggage in this case was not at the time it was taken in the corporeal possession of the defendant cannot militate against the wrongfulness of the seizure, since it was in his constructive possession which is sufficient.

In the Youman Case, and in the great majority of cases throughout the country in which the question was presented, the...