Hayes v. Com.

• Decision Date: 18 September 1970
• Parties: Chester A. HAYES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 3

458 S.W.2d 3

Chester A. HAYES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Sept. 18, 1970.

David B. Whites, Louisa, for appellant.

John B. Breckinridge, Atty. Gen., Robert W. Willmott, Jr., Asst. Atty. Gen., Frankfort, for appellee.

WADDILL, Commissioner.

Appellant was convicted of carrying concealed a deadly weapon upon his person and his punishment was fixed at two years' confinement in the state penitentiary. KRS 435.230. On this appeal we consider the several grounds urged for the reversal of the conviction.

On the evening of October 5, 1967, while appellant was attending a party at the American Legion Hall in Inez, Kentucky, certain local and state law enforcement officers conducted a raid upon the Legion Hall pursuant to a valid search warrant. During the progress of the search for illicit intoxicants appellant was arrested for having a loaded pistol concealed on his person. His arrest subsequently resulted in his conviction.

It is contended that appellant's arrest was illegal hence the search of appellant's person was unreasonable (Ky.Const.Sec. 10), because, prior to his arrest, the officers did not inform him of their intention to arrest him for having a concealed deadly weapon about his person.

The pertinent evidence shows that, while the search of the Legion Hall was in progress, a deputy sheriff detected that appellant had a pistol concealed in his trouser pocket. Immediately thereafter the deputy shouted a warning to the other officers that appellant was armed. A state trooper, who also saw the imprint of the pistol that was in appellant's pocket, with the help of other officers, immediately restrained and searched him. The officers found a loaded pistol in his right trouser pocket and placed him under arrest.

In these circumstances the arrest was valid because the arresting officers were acting in an emergency and had no opportunity to inform appellant of their intentions to arrest him for the offense of carrying a concealed deadly weapon. While KRS 431.025(1) (formerly Criminal Code of Practice, Section 39) provides that '(t)he person making an arrest shall inform the person about to be arrested of the intention to arrest him, and of the offense for which he is being arrested,' nevertheless, this provision of the statute has been construed by this court as requiring only a substantial compliance, and not requiring its strict observance, where it is impractical or futile or where the officer has no reasonable opportunity to comply with it. Nickell v. Commonwealth, Ky., 285 S.W.2d 495; Arthurs v. Johnson, Ky., 280 S.W.2d 504; Sizemore v. Commonwealth, 279 Ky. 190, 130 S.W.2d 31, and Dale v. Commonwealth, 186 Ky. 510, 217 S.W. 363.

We are of the opinion that appellant's arrest was fully warranted since the imprint of the concealed pistol furnished the arresting officers knowledge that appellant was committing a criminal offense in their presence. KRS 431.005. Robinson v. Commonwealth, 207 Ky. 53, 268 S.W. 840. Therefore, we hold that there was probable cause for the arrest. Pennington v. Commonwealth, Ky., 429 S.W.2d 364. It follows that the fruit of the search was competent evidence against him.

It is next contended that appellant was entitled to a directed verdict of acquittal because the evidence did not show that the pistol was concealed. We find no merit in this contention because substantially all of the testimony was that the pistol was concealed in appellant's right trouser pocket. The jury's determination that the pistol was concealed on appellant's person is amply supported by the evidence. The motion for a directed verdict was properly overruled.

It is further contended that the trial court erred (1) in overruling appellant's objections to the sheriff's selecting and summoning bystanders to serve on the jury and (2) in overruling appellant's challenge for cause of three of the persons who had been summoned for jury service. The challenge to the individual jurors was made pursuant to RCr 9.36 on the ground of implied bias whereby there was reason to believe that the jurors could not render a fair and impartial verdict on the evidence.

With...