Cotton v. Commonwealth

• Decision Date: 05 October 1923
• Citation: 254 S.W. 1061,200 Ky. 349
• Parties: COTTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

254 S.W. 1061

200 Ky. 349

COTTON v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 5, 1923

Appeal from Circuit Court, Christian County.

Miles Cotton was convicted of illegally possessing a moonshine still, and he appeals. Affirmed.

John C Duffy, of Hopkinsville, for appellant.

Thos B. McGregor, Atty. Gen., and Edward L. Allen, Asst. Atty Gen., for the Commonwealth.

CLARKE J.

Appellant complains of his conviction of illegally possessing a moonshine still, because of the alleged admission of incompetent evidence and insufficiency of the evidence to support the verdict.

Officers searched his house, barn, and outbuildings under a confessedly defective search warrant, and the court refused to permit them to testify as to what, if anything, they found therein.

But after so doing, the officers proceeded, either by the public road or directly through an intervening field, to a cedar thicket located on defendant's farm, about 600 yards from his residence and 500 yards from the nearest building. In the thicket, 8 or 9 barrels of mash and a water tank, the latter upon a sled, were found. Near by on his farm they found a gasoline tank, a worm. and a still cap. They also discovered sledtracks leading from the sled over defendant's land into his barn lot, near which is a spring. They were permitted, over his objections, to testify to these facts, and he contends that all of this evidence was incompetent because obtained by a search of his "possessions," in violation of section 10 of the state Constitution, which prohibits unreasonable searches and seizures.

If the evidence was so obtained, it was incompetent under the many decisions of this court. But we have never held that the word "possessions," as employed in section 10, supra, includes everything to which a citizen has title, as is broadly contended here. Upon the other hand, it is stated in several of the cases upon which defendant relies that there is no substantial difference between the state and federal inhibitions resulting from the fact that in the former the word "possessions" appears, where "effects" is used in the latter.

While we have never attempted an exact definition of the word "possessions," we did hold in Brent v. Commonwealth, 194 Ky. 504, 240 S.W. 45, that it does not have the broad meaning for which appellant contends, or "apply to the searching of woodland located somewhat remotely from his residence," but refers rather "to the intimate things about one's person, like in kind to those previously denominated," and must be construed in connection with those previous words, namely, "houses" and "papers."

Upon the same theory, we held in Childers v Commonwealth, 198 Ky. 848, 250 S.W. 106, that "houses" and "possessions," as used in section 10 of the Constitution, protected from search without a warrant a garden and pond within a stone's throw of the residence, and used in connection therewith. Likewise in Ingram v. Commonwealth, 254 S.W. 894, decided September 28, 1923, but not yet officially reported, it was held that a warrant directing a search of a described...