Embry v. Com.

• Decision Date: 23 March 1973
• Citation: 492 S.W.2d 929
• Parties: Clarence EMBRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 929

492 S.W.2d 929

Clarence EMBRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 23, 1973.

Richard E. Moorman, Moorman & Vickery, Leitchfield, for appellant.

Ed Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee.

REED, Justice.

Clarence Embry was convicted of a violation of KRS 433.290 which proscribes the knowing receipt of stolen property. He was sentenced to one year in the penitentiary. From a judgment entered in accordance with the jury's verdict, Embry appeals and asserts three grounds for reversal. According to appellant, the affidavit, on the strength of which a search warrant was issued, was fatally deficient; the prosecution failed to prove a submissible case; the trial judge improperly instructed the jury. Our review convinces us that the search warrant was based upon probable cause and the search effected pursuant to its authority was not unreasonable. The prosecution's evidence was sufficient to create a jury issue concerning the defendant's possession of the stolen property and his knowledge of its theft, and the argument concerning the propriety of the instructions cannot be considered because the issue was not properly preserved for review. Therefore, we affirm the judgment.

On January 9, 1970, a store in Ohio County was broken into and a quantity of merchandise, including several knives referred to in the evidence as 'tree brand' knives, was taken. Later the same evening and early on the next morning, the sheriff of Ohio County conducted an investigation of the robbery in the course of which he discovered tracks in the snow indicating that the thieves had headed toward Grayson County.

Meanwhile in Grayson County, while investigating a complaint unrelated to the present case, two state troopers stopped a car driven by Jody Embry, appellant's son, who was accompanied by two other boys, Billy Dale Tarrance, and another boy of the same last name who is not otherwise identified in the record. The three boys were placed under arrest, Jody Embry for drunken driving and the two others for being drunk in a public place. While searching the boys, one of the state troopers found a knife on the ground below the car door and turned this knife, a 'tree brand' knife, over to the Grayson County sheriff who had happened on the scene. A second knife was found on Billy Dale Tarrance. The three boys were taken into custody and the car belonging to Jody Embry was taken to the house in which he lived with appellant, his father.

Subsequently, the Grayson County sheriff received a communication from the Ohio County sheriff concerning the robbery of the store and it was then determined that the 'tree brand' knife found on Billy Dale Tarrance was one of those taken in the robbery. The Ohio County sheriff and the Grayson County sheriff then talked with Billy Dale Tarrance. The Ohio County sheriff testified that Billy Dale Tarrance stated on this occasion that he saw Jody Embry carrying a quantity of goods from appellant's house to the trunk of Jody's car. Billy Dale Tarrance denied this statement while testifying at appellant's trial. He did admit, however, that he received the knife found in his possession from Jody Embry while the car was parked in appellant's driveway.

On the basis of the information supplied by Billy Dale Tarrance, the two sheriffs sought and secured a search warrant from the judge of the Grayson Quarterly Court. This search warrant directed a search of Jody Embry's car and appellant's house. An arrest warrant was also issued for appellant. These warrants were issued on January 11 and appellant was arrested that same day. Jody Embry's car and appellant's house were searched with appellant present. In the car, 150 packs of cigarettes, two boxes of .22 long shells, one box of .22 short shells, five cigarette lighters and one pair of sunglasses were found. Even more goods were found in appellant's house than were found in the car. The goods in the house were scattered throughout three rooms. The Ohio County sheriff secured these items and they were later returned to the owner of the store. It is not disputed that they were stolen from the store.

Billy Dale Tarrance was convicted of breaking into the store. Jody Embry pleaded guilty to storehouse breaking and grand larceny. On cross examination at trial Jody Embry admitted that he committed the crime and took all the items in question.

The affidavit that was filed with the quarterly court judge to secure a search warrant spelled out in detail the information received from Billy Dale Tarrance and specifically named Billy Dale Tarrance as the source of the information. The appellant, however, argues that the affidavit contained no allegations regarding the credibility or reliability of the informant.

Since this court in Berkshire v. Commonwealth, Ky., 471 S.W.2d 695 (1971), abandoned its previous requirement that an informant's identity must be revealed in the affidavit for a search warrant, we have not had occasion to decide whether the credibility and reliability of a named informant must be alleged as is now required where the informant is unnamed. Cf. Thompson v. Commonwealth, Ky., 472 S.W.2d 884 (1971).

The Supreme Court decision concerning the necessity to affirmatively allege the credibility and reliability of an informant in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), all dealt with affidavits for search warrants based on information supplied by unnamed informants. The general rule has long been that an affidavit for a search warrant based on information furnished by a named individual is ordinarily...