Commonwealth v. Meiner

• Decision Date: 15 December 1922
• Citation: 196 Ky. 840,245 S.W. 890
• Parties: COMMONWEALTH v. MEINER.
• Court: Kentucky Court of Appeals

245 S.W. 890

196 Ky. 840

COMMONWEALTH v. MEINER.

Court of Appeals of Kentucky.

December 15, 1922

Appeal from Circuit Court, Campbell County.

Jake Meiner was charged with permitting gambling devices to be kept and operated on his premises, and, from an order dismissing the indictment, the Commonwealth appeals. Reversed and remanded.

Evidence procured by an unlawful search cannot be properly suppressed by motion before it has been offered in evidence.

Chas I. Dawson, Atty. Gen., T. B. McGregor, Asst. Atty. Gen., and Lawrence J. Diskin, of Newport, for the Commonwealth.

MOORMAN J.

Jake Meiner was indicted in the Campbell circuit court, under section 1967, Carroll's Kentucky Statutes 1922, for suffering and permitting certain machines and contrivances known as slot machines, to be kept and operated on the premises under his control, whereby money and property and other things of value were won and lost. Under a plea of not guilty the case was called for trial, but, before any evidence was introduced, the accused moved the court to prohibit the introduction of the evidence in possession of the commonwealth, on the ground that it was obtained under an unauthorized search and seizure and without warrant, judicial order, or other process of law.

On the disclosure in chambers of the evidence objected to, the motion was sustained, and thereupon the commonwealth attorney stated, in open court, that he had no other evidence that could be introduced. The indictment was then dismissed on motion of the accused, and from that order the commonwealth has appealed.

The evidence shows that officers of the Kentucky National Guard then on duty at Newport, had received information that liquor was stored in a garage belonging to or in the possession of Meiner, at 516 Elm street, Newport. Captain Roy W. Easley testified that he went to the building and inquired where he could get the key, and some one told him that Mr. Meiner was coming down the street and would be there in a minute or two. The witness said:

"I told him I wished to get in and look around, I understood he had some whisky. He said I was welcome to go in; that he did not have any whisky. I went inside and searched all over the garage, and just as I started to go out I found two slot machines covered up with sacks or some kind of old clothing, and I took those."

On cross-examination he said:

"I told him I understood that there was whisky in the garage, and I wanted to get in, and he said, 'I have the key; there is none in there; you can look and see.' "

The proof shows that Meiner opened the door, and, while an attempt is made to prove that he did so because of a threat to break in, there is no evidence of any such threat. On the contrary the testimony clearly indicates that Meiner, when informed of Easley's purpose in coming to the place, consented to the search, if in fact he did not invite it.

Evidently the trial court regarded the search as forcible, and on that theory sustained the motion to suppress the evidence that the commonwealth proposed to introduce. The action of the trial court in suppressing this evidence, whether it would or would not be competent on the trial, is unauthorized under the practice in this state. The competency of evidence unlawfully acquired, or procured in the execution of...