Divine v. Commonwealth

• Decision Date: 16 December 1930
• Citation: 33 S.W.2d 627,236 Ky. 579
• Parties: DIVINE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

33 S.W.2d 627

236 Ky. 579

DIVINE v. COMMONWEALTH.

Court of Appeals of Kentucky

December 16, 1930

Appeal from Circuit Court, Muhlenberg County.

Buck Divine was convicted of grand larceny, and he appeals.

Reversed and a new trial granted.

Teague & Teague, of Central City, for appellant.

Howard Smith Gentry, of Frankfort, and J. W. Cammack, Atty. Gen for the Commonwealth.

WILLIS J.

Buck Divine was convicted of the crime of grand larceny, and a sentence of imprisonment for a term of three years was imposed upon him. He has prosecuted an appeal from the judgment, insisting that error to his prejudice intervened at the trial. Three instances of alleged error are assigned in support of his contentions.

1. The first insistence is that certain evidence obtained by a search of appellant's home under an invalid search warrant was inadmissible against him. It has been decided by this court that evidence obtained by a search made pursuant to a void search warrant may not be used against the accused. Youman v. Com., 189 Ky. 152, 224 S.W. 860, 13 A. L R. 1303; Mabry v. Com., 196 Ky. 626, 245 S.W. 129; Keith v. Com., 197 Ky. 364, 247 S.W. 42; Reed v Com., 233 Ky. 184, 25 S.W.2d 77. The validity of the search warrant in this case is assailed upon the two grounds that the affidavit therefor was insufficient, and that the warrant itself was not signed by the officer in person, but by his official stenographer. We pass the question of the adequacy of the affidavit, since the failure of the county judge to sign the search warrant was fatal to its validity. Miller v. Com., 201 Ky. 423, 257 S.W. 3. The Act of 1914 (Acts 1914, c. 43), authorizing the appointment, in certain counties, of a stenographer or clerk to serve the county judge, and defining his powers and duties, does not empower that clerical official to sign a search warrant. The duties are thus defined and delimited by the statute:

"It shall be the duty of said stenographer to do stenographic work and typewriting for said county judge, and said stenographer shall perform such other duties as may be assigned to him by said county judge.

Said stenographer shall by virtue of his office have the same power of administering an oath as a notary public." Ky. Stat. §§ 1061a--2, 1061a--3.

The reasons for the rule requiring process issued as the result of judicial action, and involving the exercise of judicial discretion, to be signed by the judge in person, are explained in the opinion in Miller v. Com., supra, and we see no reason to relax the rigor of the rule. Cf. Payton v. McQuown, 97 Ky. 757, 31 S.W. 874, 17 Ky. Law Rep. 518, 31 L. R. A. 33, 53 Am. St. Rep. 437, and Monroe's Guardian v. Monroe, 215 Ky. 440, 285 S.W. 250.

The commonwealth urges that the search in this case was with the consent of the appellant, and hence the invalidity of the search warrant was not available to him. Com. v. Meiner, 196 Ky. 840, 245 S.W. 890; Howard v. Com., 197 Ky. 297, 247 S.W. 10; Gray v. Com., 198 Ky. 610, 249 S.W. 769; Williams v. Com., 204 Ky. 538, 264 S.W. 1080. The officer presented the search warrant which appellant read, and then directed the officer to go ahead and search. A consent of that character given under such circumstances is presumed to have been but proper submission to the authority displayed, and is not construed as a voluntary assent to the search, or as a waiver of constitutional rights. Coleman v. Com., 219 Ky. 139, 292 S.W. 771; Thomas v. Com., 226 Ky. 101, 10 S.W.2d 606; Jones v. Com., 227 Ky. 157, 12 S.W.2d 280.

We are constrained to the conclusion that the evidence obtained by virtue of the search of appellant's house under the invalid warrant was not admissible against him, and failure to exclude it requires reversal of the judgment. This will necessitate another trial, but since there is competent evidence tending to establish the guilt of the appellant, even without that uncovered by the search, it is necessary to dispose of the other questions presented by the appeal.

2. It is urged that an instruction on petit larceny should have been given to the jury. The uncontradicted evidence respecting the value of the stolen property was to the effect that it was worth much more than $20. In that state of the record, it is not necessary or proper to instruct the jury regarding petit larceny. Goodin v. Com., 235 Ky 349, 31 S.W.2d 380; Wellman v. Com., 181 Ky. 346, 205 S.W. 328; Davis v. Com., 191 Ky. 242, 229 S.W. 1029; ...