Clark v. Commonwealth
| Decision Date | 10 October 1941 |
| Citation | 288 Ky. 845 |
| Parties | Clark v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law. — Evidence discovered pursuant to search made after an arrest may be introduced in evidence against the defendant without violation of the search and seizure amendment to the Federal Constitution ).
2. Criminal Law. — In prosecution for breaking into storehouse with felonious intent, even if trial court erred in allowing evidence of discovery of stolen wire in accused's barn by prosecuting witness and deputy sheriff, prior to issuance of search warrant, accused whose own testimony established facts which were persuasive, if not essential in making a case justifying submission to jury, was not prejudiced by trial court's refusal of motion made by accused at close of commonwealth's proof to declare mistrial because of admission of such evidence (Ky. Stats., sec. 1164; Criminal Code of Practice, secs. 271, 340).
3. Burglary. — The fact that stolen property is found in one's possession is a circumstance sufficient to authorize submission of guilt on question of breaking into a storehouse with felonious intent (Ky. Stats., sec. 1164).
4. Burglary. — Evidence sustained conviction of breaking into storehouse with felonious intent (Ky. Stats., sec. 1164).
5. Criminal Law. — The jury is the sole judge of weight and balance of conflicting evidence.
Appeal from Fleming Circuit Court.
B.S. Grannis and Russell Porter for appellant.
Hubert Meredith, Attorney General, and H. Appleton Federa, Assistant Attorney General, for appellee.
Before C.D. Newell, Judge.
Affirming.
Appellant convicted on a charge of breaking into a storehouse with felonious intent, etc., Kentucky Statutes, section 1164, and sentenced to confinement for two years, prosecutes this appeal. While several grounds for a new trial were advanced in the lower court, as the case comes before us the debated questions are considerably narrowed. The all-covering ground is that the verdict is flagrantly against the evidence. Second, that evidence obtained by witnesses by entry of Clark's barn without a search warrant was incompetent, and should have been excluded from consideration of the jury upon appellant's objection.
John Breslin, chief prosecuting witness, operated a farm in Fleming County. He had stored in the barn some rolls of woven wire fencing. In the latter part of May 1940, he discovered the loss of two rolls of his wire valued at $18. Investigation showed that there had been a breaking by the removal of a chain which lapped around a plank or post, holding the two barn doors together. The wire had been taken from the top tier in the barn and rolled out to the roadway. There was evidence that a truck had been stopped near the doors, and marks made by the tires, which were noted by Breslin, led him to the belief that if he could locate the tires he would have a starting clue.
He afterwards located a truck in front of appellant's barn, which he said carried tires he believed had left the marks near his barn. There seems to have been no further investigation for a time, but later, after there had been a beef stolen in the neighborhood, Clark appeared at Breslin's office in Maysville and was deploring the fact that the theft had been committed in their neighborhood. In this conversation Clark told Breslin that he would give him some information as to where he could locate his wire fencing, provided he would not "give him away." Breslin said he would protect him unless it became necessary to use him as a witness. Clark then told Breslin that the wire was in "little George Turner's barn," and that Turner had tried to sell it to him. The day following the conversation Breslin consulted with Coryell, a deputy sheriff, who made an examination of Turner's barn and reported to Breslin that he found no wire.
Later on Breslin says that he "got a clue" that the wire was in Clark's barn; this information was given Coryell, who in a few days reported to Breslin that his wire was there. At this point it may be noted that one of the rolls of wire had such marks upon it as to allow Breslin to identify it. Breslin and Coryell then went to the barn and saw the wire. After making sure that he was not mistaken as to ownership Breslin had a search warrant and warrant of arrest issued. He and the sheriff and deputy went to Clark's place where Clark was put under arrest; they then went to the barn, got the wire and took it to the county seat. Clark seems to have made no protest, but claimed that it was his wire and he had bought it from a merchant in Flemingsburg.
At the time of the arrest Clark said, Breslin also said that after examining trial Clark met him on the street and wanted to know if there was not some way the matter might be adjusted; Breslin told him he would let the court settle it. The deputy sheriff corroborates the testimony of Breslin as to what occurred after he was called into the case, as does the sheriff as to what occurred at the time of arrest and the securing of the rolls of wire. Another witness testified as to what he called the "peculiar" marks made by the truck tires. As to whether or not it was Clark's truck was a subject which brought out strong contradictory evidence.
Appellant testified that he had bought three rolls of wire from Berry, as he claimed at different times and all during the "last days of May." The wire was brought to his place apparently after dark; Berry came to the house after the Clark family had eaten supper and asked payment. Clark wanted Berry to accept a check, but he declined and Clark obtained two $5 bills from Mrs. Clark and paid him. Mrs. Clark, and other witnesses who were at the Clark home, corroborate the testimony as to the presence of Berry and the payment of the $10. Clark testified that the tires on his truck did not make marks as described by Breslin and his tenant.
Strode and Berry were positive that they had never sold or delivered any wire to Clark at any time, or that they had taken the wire from Breslin's barn. Clark admits payment to Berry for some work, perhaps to the amount of $2 or $2.50, but says Berry performed no work for the $10. Whether Berry worked sufficient time to earn as much as ten or twelve dollars, as he claimed, is the subject of conflicting testimony. There is testimony to the effect that Clark had made approaches to George Turner to get him to testify that Strode and Berry stole the wire. This was denied by Clark. He does admit that when the wire was located in his barn he told Breslin and the officers that he bought the wire from Berry, who said he had bought it in Ohio, and that he was tired of protecting them, explaining that "protection" meant dread or fear that he might be burned out. He admits that he told Breslin that he "thought" he would or could...
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Fugate v. Commonwealth
... ... appellant's constitutional rights and, instead of ... standing by his objection, the appellant voluntarily ... testified that the meat was in his residence but was bought ... at a store. Thereby he waived his objection based on ... illegality of the search. Clark v. Com., 288 Ky ... 845, 157 S.W.2d 485 ... The ... evidence as to the meat found concealed in the trees fifty ... yards from the house was competent. We have frequently held ... that the words "houses" and "possessions" ... contained in section 10 of the State ... ...