Duncan v. Commonwealth

• Decision Date: 01 May 1923
• Parties: DUNCAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

250 S.W. 101

198 Ky. 841

DUNCAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 1, 1923

Appeal from Circuit Court, Fayette County.

Hallie Duncan was convicted of illegal possession of intoxicating liquors, and he appeals. Reversed, with directions to grant a new trial.

J. J McBrayer, of Lexington, for appellant.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

TURNER C.

Appellant was arrested on a warrant charging him with the illegal possession of intoxicating liquors, and on his trial in the quarterly court of Fayette county was found guilty. He thereupon superseded the judgment and appealed to the Fayette circuit court, in which tribunal he was again tried and found guilty, and from that judgment this appeal is prosecuted.

The only question necessary to consider is the admissibility of certain evidence procured by the sheriff of Fayette county and his deputy when they searched appellant's home in his absence. The sheriff stated that he went to the home of appellant in Lexington on Sunday morning in September, 1922, accompanied by his deputy, Davis; that the house was the home of appellant; that appellant was not at home at the time, but that his wife was there, and when she came to the door he informed her he was sheriff, and told her he understood there was some whisky there; that he asked for her husband, and she said he was out driving in an automobile; that he had no search warrant, but that the wife told him to come on in and search for the whisky, and after this statement he did go in, searched the house, and found a quantity of whisky. The evidence of the deputy sheriff is in substance the same, except he says appellant's wife recognized the sheriff and spoke to him by name when they went to the door.

We have, then, the question whether an officer, who discloses his identity as such, or who is known to be such, may lawfully search the home of one in his absence, by consent or acquiescence of the wife, who is present at the home. For the purposes of this appeal it is unnecessary to determine whether under any and all circumstances a man's wife, in his absence, may or may not waive his constitutional rights. It is only necessary to decide whether, under the facts and circumstances in evidence, and the coercion to be implied therefrom, there was an effectual waiver upon the part of the wife, so as to authorize the search.

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