Cline v. Commonwealth

• Decision Date: 21 April 1950
• Citation: 312 Ky. 645
• Parties: Cline v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

312 Ky. 645

Cline v. Commonwealth.

Court of Appeals of Kentucky.

April 21, 1950.

Herbert Cline was convicted in the Circuit Court, Warren County, John B. Rodes, J., of the crime of storehouse breaking and defendant appealed. The Court of Appeals, Rees, J., held that failure of trial court to instruct jury on issue of fact as to whether defendant gave voluntary consent to search of his apartment, entitled defendant to a new trial.

Judgment reversed with directions.

1. Criminal Law; Searches and Seizures. — The owner or person in charge of a house at time a search is made may consent to search, thus waiving constitutional guarantee against unlawful search and seizure and rendering competent evidence so obtained, but consent must be voluntary and not coerced.

2. Burglary. — Where defendant, charged with storehouse breaking, was in possession of recently stolen property, weight and sufficiency of defendant's explanation for his possession were for jury.

3. Criminal Law. — Generally, competency, admissibility and sufficiency of evidence is for court, and weight, effect and credibility thereof is for jury.

4. Criminal Law. — Where admissibility of evidence depends upon a preliminary disputed fact question and offered evidence is practically decisive of case, trial court should admit evidence and instruct jury on disputed fact question bearing on its admissibility.

5. Criminal Law. — In prosecution for storehouse breaking, where defendant contended that stolen property was found in his apartment after an illegal search thereof, failure of trial court to instruct jury on issue of fact as to whether defendant gave voluntary consent to search of his apartment, entitled defendant to a new trial.

G.D. Milliken, Jr., for appellant.

A.E. Funk, Attorney General, and Walter C. Herdman, Assistant Attorney General, for appellee.

Before John B. Rodes, Judge.

JUDGE REES.

Reversing.

Herbert Cline has been convicted of the crime of storehouse breaking, and sentenced to confinement in the penitentiary for a term of two years. He seeks reversal of the judgment on two grounds: (1) The only evidence tending to connect him with the crime was obtained by an unlawful search and should have been excluded; and (2) the court failed to instruct the jury on the whole law of the case.

The furniture store of Sam Kirtley in Bowling Green was entered on the night of January 10, 1949, and, among other articles, a Zenith portable radio was stolen. Acting on information received from an anonymous source, the chief of police, accompanied by another policeman, on the night of January 20, 1949, went to appellant's apartment which was located on the second floor of a building in Bowling Green. The officers had no warrant of arrest for appellant and no search warrant for his premises. They knocked on the door to appellant's apartment, and when he opened the door asked him if he had a radio. He replied that he did not. The officers claimed they could see into the adjoining room through a door which was ajar, and could see a radio on the floor. They inquired as to the ownership of the radio, and appellant said it belonged to the occupants of the apartment in the rear of the building. The chief of police testified that he told appellant that he wanted to see the radio, and appellant said: "All right." The two policemen walked into the bedroom where appellant's wife was preparing to retire, examined the radio, and found that it answered the description of the stolen radio, including the serial number. The evidence of appellant's possession of the stolen property was the only evidence introduced by the Commonwealth tending to connect him with the crime. Both appellant and his wife denied that he said "all right" when the chief of police expressed a desire to see the radio, and they denied that appellant at any time gave the officers permission to enter the apartment and make a search. It is argued on appellant's behalf that his acquiescence was induced by fear of the officers and respect for their apparent authority, and did not constitute a voluntary consent to the search nor a waiver of his constitutional right of immunity from illegal search and seizure and that the evidence obtained by the search should have been excluded. It is suggested by the attorney for the Commonwealth that appellant waived the incompetency of the testimony by failing to object to it at the time it was offered, but we find that timely objection was made. The court reserved its ruling, but later overruled the objection and appellant excepted.

The owner or person in charge of a house at the time a search is made may consent to the search, thus waiving the constitutional guaranty against unlawful search and seizure and rendering competent evidence so obtained. Morris v. Commonwealth, 306 Ky. 349, 208 S. W. 2d 58; Banks v. Commonwealth, 190...