Kelley v. State

• Decision Date: 12 October 1946
• Citation: 197 S.W.2d 545,184 Tenn. 143
• Parties: KELLEY v. STATE.
• Court: Tennessee Supreme Court

197 S.W.2d 545

184 Tenn. 143

KELLEY v. STATE.

Supreme Court of Tennessee.

October 12, 1946

Rehearing Denied Nov. 30, 1946.

Error to Circuit Court, Greene County; Sherbourne Ferguson, Judge.

Earl Kelley was convicted of possessing intoxicating liquors, and he brings error.

Reversed and remanded.

On Petition to Rehear.

Kilgo and Armstrong, of Greneville, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

CAMPBELL Special Justice.

The plaintiff in error was convicted for possessing intoxicating liquors, with his punishment fixed at a fine of $250 and four months in jail.

A review of the record discloses that the wife of the plaintiff in error summoned the officers to come to the home of the plaintiff in error to arrest him on a charge of beating her. When they reached the home, the plaintiff in error was not there, but the wife of the plaintiff in error took the officers into the house and told them that she would show them where he kept his liquor. She took them to a cabinet and showed them two half gallons and eight pint jars of whiskey.

On the trial of the case, the plaintiff in error denied ownership of the liquor and denied any knowledge of its presence in the house. His wife testified that the whiskey belonged to her, that she had bought it from a negro from Newport, and that when she told the officers that it was the plaintiff in error's whiskey she was mad at her husband.

The assignments of error relate to the sufficiency of the evidence against the plaintiff in error, and there is a specific assignment to the effect that the lower Court erred in allowing the witnesses for the State, over the objection and exception of the defendant, to testify as to the whiskey found as a result of the search of the defendant's premises, this evidence having been obtained by reason of an unlawful and illegal search.

It is admitted by the State that the only evidence against the plaintiff in error arose from the presumption that the whiskey found in the home of the plaintiff in error was his property.

The Constitution of this State protects citizens of this State against unreasonable searches and seizures, and it has been held consistently that officers may not search premises without having a proper search warrant, and that, if such search is made in definance of the rights of the owner of the premises, any evidence obtained through such unlawful search is inadmissible against the owner in any prosecution.

The question here arises as to whether or not the wife of the defendant in circumstances such as these could waive the rights of the plaintiff in error so as to enable the State properly to introduce in evidence the discoveries arising out of the search made with the wife's consent.

At the time that the officers reached the premises of the plaintiff in error, there was no breach of the peace occurring, any altercation that had happened between husband and wife having been completed and the husband being absent from the premises. Consequently, the only right to enter upon the premises and search them would be such right as accrued to the officers by reason of the invitation of the wife.

We do not find it necessary to pass upon the question as to whether, in circumstances of normally good relationship between husband and wife, a wife may waive the husband's rights with regard to a search warrant. In this case however, the wife was angry at her husband, was exceedingly hostile in her attitude toward him, had called the officers to arrest him and then, when the officers appeared, did her utmost to get the plaintiff in error into trouble. In other words, her actions were hostile to her husband and obviously contrary to his interests.

We are of the opinion that in such circumstances the wife had no right to waive her husband's protection against unreasonable searches and seizures, any more than any other person would have had. Her whole attitude was contrary to his interests, and it could not be said that she was acting in any sense in the family interest with any authority to waive rights which might otherwise properly arise out of the relationship.

In Cofer v. United States, 37 F.2d 677, 679, the United States Court of Appeals for the Fifth Circuit, in an opinion by Judge Grubb, held, citing Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, 'The wife was without authority to bind her absent husband by waiving a legal warrant, or consenting to an unauthorized search.'

We are, therefore, of opinion that the evidence procured by this search was improperly admitted and should have been excluded on the objection of the plaintiff in error.

Furthermore the only weight that such evidence would have had would have been to create a presumption that the liquor found was the property of the husband, who was, in legal intendment, the head of the house. However, this presumption, like others, is a rebuttable one, and is done away with upon the introduction of affirmative evidence on the point.

In this case, the wife testified that the whiskey was her property bought by her, and the husband testified that he did not own the whiskey and knew nothing of its presence in the house. This evidence removed the presumption and left the State without evidence sufficient to support any conviction on this charge.

Accordingly, the assignments of error are sustained and the case is reversed and remanded.

On Petition...