Lewis v. Commonwealth

• Decision Date: 26 January 1923
• Citation: 247 S.W. 749,197 Ky. 449
• Parties: LEWIS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

247 S.W. 749

197 Ky. 449

LEWIS v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 26, 1923

Appeal from Circuit Court, Harlan County.

Ben Lewis was convicted of carrying a concealed deadly weapon and he appeals. Reversed.

Snyder & Adkins, of Harlan, for appellant.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

THOMAS J.

On his trial under an indictment returned by the grand jury of Harlan county on April 11, 1922, accusing him of the offense of carrying concealed on or about his person a deadly weapon other than an ordinary pocket knife, the appellant and defendant below, Ben Lewis, was convicted. The court overruled his motion for a new trial, and he has appealed.

Some question is made about the sufficiency of the indictment, as well as the action of the court in trying defendant during his temporary absence from the courtroom for the purpose of notifying by telephone his witnesses in another indictment pending against him in the same court that it had been continued by agreement, and that they need not attend court, but, because of the errors hereinafter pointed out, we deem it unnecessary to consider either of those complaints.

The only witness introduced by the commonwealth was J. V. Gross, who testified that he was a constable in Harlan County, and was the chief peace officer in the mining town of Lynch, located in that county; that he was notified one night in March, 1922, by the clerk of a hotel in that town that a crowd of persons were drunk in one of the rooms of the hotel, whereupon witness went to the room and said he found "some of them drinking." He then and there arrested the defendant, and searched him, finding concealed upon his person a pistol which could not be and was not seen by the witness until after the search. He stated that he arrested defendant because he was drunk, and not for carrying concealed deadly weapons, for which he was indicted and tried. Continuing his testimony he said:

"I took him before Squire Huff, the magistrate of that district, and he was bound over to answer an indictment of the circuit court for carrying a concealed deadly weapon, which was the one I found on him. I had no warrant for the arrest or search of the person of Ben Lewis before I found this pistol. I caused no warrant to be issued for drunkenness. He was not tried or fined before the magistrate on a charge of drunkenness, and no warrant was issued for any charge. Ben Lewis did not commit any breach of the peace or other offense in my presence authorizing his arrest, but I arrested him solely because he was drunk."

Under the provisions of section 36 of the Criminal Code a peace officer may arrest one under a legal warrant authorizing him to do so, or he may make the arrest without a warrant "when a public offense is committed in his presence, or when he has reasonable grounds for believing that the person arrested has committed a felony." Unless, therefore, he has a warrant, or the offense was committed in his presence, or he has reasonable grounds to believe that the arrested person has committed a felony, he has no authority to make the arrest, and, under the law as declared by this and other courts, any evidence which might be found upon the arrested person when the arrest was made without authority cannot be used against him. A leading late case from this court is that of Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A. L. R. 1303. It is admitted that the witness had no warrant authorizing the arrest of defendant, nor is it claimed that he had reasonable grounds to believe that defendant had committed a felony; so that the only remaining ground authorizing his arrest would be the commission by defendant of a public offense in the presence of the witness, and the only pretended one so committed, if any, was that of being drunk in the presence of the officer while in a room in the hotel. Whether that constituted a public offense is the question for determination.

We are not informed from anything contained in the record whether the arrest was made after the 22d day of March, 1922, when chapter 33, Acts 1922, commonly known as "the Rash-Gullion Act," took effect, or whether it was before that day, since the witness says that it was in March of that year. But, whether it was the one date or the other, the...