Carter v. Commonwealth

• Citation: 28 S.W.2d 976,234 Ky. 695
• Parties: CARTER v. COMMONWEALTH.
• Decision Date: 06 June 1930
• Court: Kentucky Court of Appeals

28 S.W.2d 976

234 Ky. 695

CARTER v. COMMONWEALTH.

Court of Appeals of Kentucky

June 6, 1930

Appeal from Circuit Court, Jessamine County.

Edgar Carter was convicted of possessing intoxicating liquor, and he appeals.

Affirmed.

Letcher Saunders, of Nicholasville, for appellant.

J. W Cammack, Atty. Gen., and George H. Mitchell, Asst. Atty Gen., for the Commonwealth.

HOBSON C.

At its March term, 1930, the grand jury of Jessamine county returned an indictment against Edgar Carter for the crime of unlawfully and feloniously possessing intoxicating liquor and it was charged in the indictment that on September 18 1929, he had been convicted of a like offense, and his punishment fixed at a fine of $200 and confinement in jail for a period of thirty days. On the trial of the case he was found guilty, and his punishment fixed at two years' confinement in the penitentiary, his previous conviction having been shown on the trial. He appeals.

The facts shown by the proof are these: Arthur House owns a farm in Jessamine county. On the back end of his farm there was an old tenant house which was vacant; he had not rented it to anybody. On January 30, 1930, House, in going after some cows, passed near this house and smelled mash there. He then went to the county seat and told the sheriff, requesting him to come down and get it off his place. The sheriff and a deputy, at his request, accompanied him home, and when they got there he showed them the house and told them to search it. As the officers got to the house, Edgar Carter, who was within, started to run to the window on the opposite side of the house and jump out, but one of the officers got there in time to stop him. He then said to the officer, "Its hell to be caught with the first run," and also told the officer that he had just been firing and had sat down just before they came. The still was in operation. Roger Preston who was also in the room, was catching the whisky in a cup as it ran out of the still. There were three gallons of whisky in the room. The officers had no search warrant; they were acting at the request of House. It is insisted for appellant that all the evidence was incompetent, because it was obtained by an illegal search. But the constitutional provision against unreasonable searches only applies to the rightful owners of property or persons rightfully in possession. It was not designed to protect willful trespassers on the property of another. Neither Carter nor Preston had any right to be in the house. They were simply trespassers, and when House requested the officer to search his house there was no need for them to get out a search warrant. In Gray v. Com., 198 Ky. 610, 249 S.W. 769, the appellant lived with his mother. She requested the officers to...