Bruner v. Commonwealth

• Decision Date: 30 September 1921
• Citation: 192 Ky. 386,233 S.W. 795
• Parties: BRUNER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

233 S.W. 795

192 Ky. 386

BRUNER v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 30, 1921

Appeal from Circuit Court, Boyd County.

Hugh Bruner was convicted of feloniously breaking into a storeroom and stealing goods therefrom, and he appeals. Affirmed.

J. S Fullerton, of Ashland, for appellant.

Chas I. Dawson, Atty. Gen., and Charles W. Logan, Asst. Atty Gen., for the Commonwealth.

QUIN J.

Appellant was indicted and convicted of feloniously breaking into a storeroom and stealing goods therefrom. He was sentenced to serve a four-year term in the penitentiary, complaining of which judgment he has appealed.

The chief of police of Ashland and other police officers, while secreted in a building close to appellant's house, saw two men, with several packages and a bundle of boxes tied together, enter the building occupied by appellant. This was about 4 o'clock a. m. Immediately thereafter the police officers went to appellant's abiding place, and there in the loft they found 38 pairs of new shoes. The shoes were later identified as the property of Gray & Poor, whose store was broken into the same night. The police officers did not know appellant, and at the time they went to his house they had not heard of the robbery at the shoe store. The officers had in their possession a "John Doe" search warrant, issued by the police judge on the information of one Watkins that illicit liquor was concealed in the building at 113 East Winchester avenue, the premises occupied by appellant.

Appellant's chief insistence is that his motion for a peremptory instruction should have prevailed. This is on the theory that the officers' only authority for making the search and seizure was the search warrant; that it was not for accused, nor for the property seized, and was not issued upon the oath of two reputable citizens as required by law. Both the federal and state Constitutions guarantee to the people security of their persons, houses, and possessions from unreasonable search and seizure--rights that will be protected, though to do so in certain instances might retard or defeat the ends of justice. The courts have ever protected the sanctity of the home, and will always guard with zealous care one's indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. As aptly said in the case supra:

"Any compulsory discovery, by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom."

See, in this connection, Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303, and Turner v. Commonwealth, 191 Ky. 825, 231 S.W. 519. To same effect, see Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 311.

In the Youman Case the search of the premises was made without a search warrant; in the instant...