Campbell v. Commonwealth

• Decision Date: 13 May 1924
• Citation: 261 S.W. 1107,203 Ky. 151
• Parties: CAMPBELL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

261 S.W. 1107

203 Ky. 151

CAMPBELL v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 13, 1924

Appeal from Circuit Court, Perry County.

Orlena Campbell was convicted of having intoxicating liquor in her possession, and appeals. Affirmed.

Ballou & Boleyn, of Hazard, for appellant.

Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

The appellant, Orlena Campbell, charged by warrant with unlawfully having in her possession intoxicating liquor, in violation of the provision of chapter 33, § 1, Acts General Assembly 1922, was tried for and convicted of the offense in the Perry county court. From the judgment of that court she prosecuted an appeal to the Perry circuit court, her trial in which court also resulted in her conviction of the offense her punishment therefor being fixed by verdict of the jury and judgment of the court at a fine of $200 and imprisonment of 30 days in jail. Complaining of the judgment of the circuit court, she has appealed to this court.

It is contended by the appellant that the judgment should be reversed because of error committed by the trial court First, in admitting, over her objection, incompetent evidence in behalf of the commonwealth. Second, that the arrest of the appellant for the offense charged, which was made without authority of a warrant, was illegal.

As will presently be seen, these two contentions must stand or fall together, for they are based on the same ground, viz., the claim made by appellant, through her counsel, that the means by which the officer discovered her possession of the liquor for which she was arrested constituted an unlawful search of her person, because made without a search warrant, which rendered incompetent as evidence the discovery of her possession of the liquor seized and taken from her by the officer. The only evidence heard on the trial was furnished by the testimony of John M. Combs, a deputy sheriff, the single witness introduced by the commonwealth, which was substantially as follows: That he had known the appellant seven or eight years, and upon being informed that she and another woman designated in the record as "Sally Ann," were coming to the mining camp of the Hazard-Jelico Coal Company in Perry county with moonshine whisky in their possession, he (Combs) in his official capacity as deputy sheriff went to the mining camp and there encountered the two women near the coal company commissary, and immediately discovered that each of them was in possession of some thing or object concealed in and under her clothing, causing it to stand out and thereby show the bulk of the object concealed, which was apparently of the size of the glass jars in which moonshine whisky is usually handled by lawless dealers in that commodity. In addition, the witness saw that the dress of the appellant, where it was made to protrude by the bulk of the object concealed beneath, was wet or damp. Being convinced by what he thus observed that the two women were in the unlawful possession of moonshine whisky, the officer asked them if this was not true, in response to which each of them admitted her possession of the whisky; and upon being asked the quantity they had, the answer was two jars each. Thereupon the women were told by the officer to take the whisky off, that is, remove it from their clothing, which they did and placed the jars of whisky on the ground, thereby disclosing that there were three, instead of four, jars of it as had previously been stated by the women, each containing a half gallon of whisky,...