Ingle v. Commonwealth

• Decision Date: 26 September 1924
• Citation: 264 S.W. 1088,204 Ky. 518
• Parties: INGLE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

264 S.W. 1088

204 Ky. 518

INGLE v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 26, 1924

Appeal from Circuit Court, Letcher County.

Nath Ingle was convicted of unlawful transportation of intoxicating liquors, and appeals. Affirmed.

D. D Fields & Day, of Whitesburg, for appellant.

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

The appellant, Nath Ingle, was convicted in the Letcher circuit court on his trial under an indictment charging him with the offense of transporting intoxicating liquors not for permissible purposes, contrary to the provisions of our statute commonly known as the "Rash-Gullion Act" (Acts 1922, c. 33). His motion for a new trial was overruled and from the judgment pronounced upon the verdict he prosecutes this appeal, contending through his counsel that the evidence introduced by the commonwealth, which was furnished by officers, was incompetent because it was not obtained under a search warrant. The indictment was grossly multifarious, an error which seems to pervade the practice in this kind of prosecution, and especially in some sections and districts, notwithstanding the repeated opinions of this court that the accused in a charge for violations of the act is entitled to have pointed out to him, in the accusatory paper, the specific offense for which the commonwealth intends to try him, the same as in a prosecution for any other crime. However, there was no demurrer to the indictment nor any motion made to require the commonwealth to elect, and the error in the indictment was therefore waived.

All of the evidence heard upon the trial was furnished by witnesses introduced by the commonwealth, since the defendant did not testify nor introduce any witnesses in his behalf. The uncontradicted proof furnished by the commonwealth was that the sheriff, and perhaps one or more deputies, were crossing Pine Mountain in Letcher county, and they overtook defendant, who was on his horse by the side of the road talking to some men who were sitting upon the ground, and across defendant's saddle was a pair of saddle pockets. Each of the pockets was filled to its capacity with fruit jars, the tops of which the officers could see, they being plainly in view, and he could also see the print of the other portions of the jars from the outside of the saddle pockets. The men on the ground who were talking to defendant had, scattered around them, practically empty bottles and perhaps fruit jars which they endeavored to conceal upon the discovery of the officers, and the odor of whisky was somewhat rampant around and about the entire crowd, one member of which was defendant. The sheriff knew the reputation of defendant to be that of a bootlegger and violator of the prohibition act. A justice of the peace was along, and the sheriff notified him that he was thoroughly convinced that defendant had whisky in his saddle pockets, and the justice advised the sheriff to arrest defendant or to search him, and the officer went into the saddle pockets and found that the fruit jars therein contained whisky in the quantity of two gallons or more and that defendant had concealed upon his person a bottle of whisky, and it was upon that undisputed testimony that the verdict of conviction was based. The only ground urged for a reversal is that the evidence which we have outlined was incompetent because the sheriff did not have a search warrant, and it is insisted that he had no right under the circumstances to make the search without one, and that is the sole question in the case.

Preliminary to the disposition of that question, it might be well to keep in mind certain well-settled and fundamental rules of the law, and which have been uniformly applied by this court, and they are: (1) That evidence obtained by a search made by an officer without a search warrant, except in cases stated below, is inadmissible, and its introduction over the objections of the defendant is incompetent and erroneous; (2) evidence discovered by a search of the person, or his belongings in his immediate presence, upon his being legally arrested, is competent and admissible; (3) that an officer may lawfully make an arrest for a misdemeanor under a duly issued warrant, or if the misdemeanor is committed in his presence--from which it follows that any evidence discovered or found by the officer arresting the misdemeanorant will be competent under rule 2, supra. So that, if the sheriff in this case had the right to arrest defendant without a warrant (for he had none), the discovery of the whisky in his possession and which he was transporting was competent evidence against him; and it is our task to determine whether, under the circumstances, he had such right, which, if so, it must be bottomed upon his right to make an arrest for a misdemeanor committed in his presence.

Before addressing ourselves directly to that question, we will dispose of what might be termed a preliminary contention made by counsel, and which is that the sheriff did not arrest the defendant at that time, but first made the search, and that because the search preceded the arrest the obtention of the evidence did not come within the rule allowing its competency. Answering that contention, we seriously doubt if it is based upon sound reasoning, since we are inclined to the belief that a search may always be made without a warrant in all cases where an arrest might be made without a warrant for an offense committed in the officer's presence. But we are not dependent alone upon any analogy which might exist between the two performances by the officer, since section 12 of the Rash-Gullion Act, which is chapter 33, p. 109, Acts 1922, in part, says:

"When any peace officer of the law shall discover any person or persons in the act of illegally possessing or transporting, in violation of this act, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize at once any and all intoxicating liquors found therein being transported contrary to this act or illegally possessed; and to seize said

...