Freeman v. Com.
| Decision Date | 20 October 1967 |
| Citation | 425 S.W.2d 575 |
| Parties | Charles Edward FREEMAN, and John Howard Tucker, Appellants, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Kenny Grantz, Louisville, for appellants.
Robert Matthews, Atty. Gen., Darryl T. Owens, Asst. Atty. Gen., Frankfort, for appellee.
Appellants are appealing from a judgment convicting them of the offense of dwelling house breaking. They received a sentence to the penitentiary. The facts from which the conviction arose are:
On April 21, 1966, the homes of Monroe Heuman and J. Carter Stewart were broken into and robbed. Mrs. Peter Ronald, a neighbor of J. Carter Stewart, shortly prior to the breaking and entering returned home from a shopping trip and observed a car backed into her garage. Appellant Freeman approached her from her garage and inquired if she wished to hire someone for yard work. She replied in the negative and Freeman got into the car in which there was another occupant and drove away in the direction of the Stewart home, which was on a dead-end street. Because of the suspicious actions of the appellant, Mrs. Ronald took the license number of the car which she subsequently furnished to the police. After the robbery was discovered, the police armed with the information furnished by Mrs. Ronald and a description of the property stolen, checked the registration of the automobile and found that it was owned by Maynard's Auto. They proceeded to the address of this establishment at Sixth and Oak streets and upon arriving there observed the car in question being driven upon the lot. The officers approached the car which was occupied by appellants and observed in the back seat several articles which had been taken from the Stewart home. Appellants were then placed under arrest. Appellant Tucker and Freeman were charged with breaking and entering three dwelling houses. In addition, appellant Tucker was charged with breaking and entering three more dwelling houses and a store. Three of the counts against Tucker and one of the counts against Freeman were reassigned and subsequently filed away. During the course of the trial the court directed a verdict of not guilty on two counts of dwelling house breaking against Tucker. Both appellants were found guilty on the two remaining counts of dwelling house breaking and Freeman was sentenced to five years on each to be served consecutively and Tucker to four years on each to be served consecutively, from which sentences they prosecute this appeal.
Appellants assigned six counts of error as follows:
1. The trial court should have suppressed the statements made by John H. Tucker before the trial.
2. The trial court should have discharged the jury because of improper statements made by the Commonwealth's attorney in his opening statement.
3. The trial court should have directed a verdict of acquittal on the charge of breaking into the home of J. Carter Stewart because of insufficient evidence.
4. Error committed by the court in allowing property taken from the automobile to be introduced in evidence.
5. Improper closing argument of the Commonwealth's attorney.
6. Failure to instruct in writing that the verdict must be unanimous.
We will discuss the foregoing contentions in their respective order.
Appellant contends that the trial court should have suppressed statements made by Tucker in the form of confessions before the trial because Tucker was not represented by counsel at the time these statements
'8in our practice the proper time, and the only time, in which objection can be made to the introduction of evidence * * * is when it is offered during the trial, * * *'
The question next came before the court in 1922 in Commonwealth v. Meiner, 196 Ky. 840, 245 S.W. 890. This was a prosecution for possession and operation of slot machines. Before the evidence was introduced the accused moved the court to prohibit its introduction on the grounds that it was obtained by an unauthorized search and seizure and without a warrant. The court sustained the motion in chambers following which the Commonwealth stated in open court that it had no other evidence. The indictment was dismissed by the court and upon appeal we said:
It doesn't appear that the question was again raised until 1964 in Trevathan v. Commonwealth, Ky., 384 S.W.2d 500. At a preliminary hearing on the day of the trial, Trevathan's counsel moved the court to suppress and exclude from evidence 'any and all evidence pertaining to or alluding to a knife allegedly found in an outhouse on the defendant's premises because the knife was discovered as a result of an illegal search and seizure.' The trial court sustained the motion ruling the knife itself could not be admitted in evidence. The motion was overruled to the extent that it allowed reference in the testimony to be made to the finding of the knife. This court reversed, citing Mapp v. Ohio, (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933. Although the court did not pass upon the timeliness of the objections it appears that we tolerated the motion to suppress. Even though we have no provision in our Kentucky Rules of Criminal Procedure comparable to Federal Rule 41(e) this fact should not preclude a trial court in a proper case from excluding incompetent evidence when at a pre-trial conference it is clearly apparent to the court that under no state of the facts would the evidence be competent. By so doing, the trial can in many instances be shortened and the issues simplified. In some cases it may eliminate the necessity of the trial altogether. RCr 8.16 seems to apply to this situation; it provides that '(a)ny defense or objection which is capable of determination without the trial of the general issue may be raised...
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