Marsh v. Commonwealth

• Citation: 255 Ky. 484
• Parties: Marsh v. Commonwealth.
• Decision Date: 28 September 1934
• Court: United States State Supreme Court (Kentucky)

255 Ky. 484

Marsh v. Commonwealth.

Court of Appeals of Kentucky.

Decided September 28, 1934.

1. Searches and Seizures. — It is unlawful for officer to hold up citizen on highway for search of his person, or his portable possessions, without search warrant or unless offense has been committed in officer's presence.

2. Criminal Law. — Evidence of liquor discovered on officer's search of accused's automobile without his consent, without warrant, and on mere suspicion held inadmissible, where no offense was committed in officer's presence and accused was not arrested until after search and discovery of liquor.

Appeal from Wayne Circuit Court.

E. BERTRAM for appellant.

BAILEY P. WOOTTON, Attorney General, and DAVID C. WALLS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE REES.

Reversing.

The appellant, Ozro Marsh, charged with the unlawful possession of intoxicating liquor, was convicted and his punishment fixed at a fine of $300 and sixty days' imprisonment in jail.

He seeks a reversal of the judgment on the ground that the evidence upon which he was convicted was obtained by an illegal search. The commonwealth introduced two witnesses, Shell Green, marshal of the city of Monticello, and James Castillo, a deputy sheriff. Their testimony as contained in the transcript is in narrative form and that of the witness Green is as follows:

"During the winter and spring of 1933 I was marshal of the City of Monticello, Kentucky. Some time in May I think I received notice that there was some disturbance over on the hill and I asked James Castillo, a deputy sheriff, to go over there with me. After we had turned off on the road leading to the hill we found two fellows with a car and they were drunk. We stopped our car and arrested them and while we were there with them we saw the lights of a car coming down the mountain and heard some shooting over there. While we were there at the same place the car drove up to where we were and stopped some ten or fifteen steps from us. I went to the car and the defendant was in the car by himself. I asked him if he did the shooting we heard and he said `No.' He was sober. I asked him what he had in the car and he held up a pistol and told me that was all he had in the car. I think he picked the pistol up from the seat. I put my foot on the running board of the car and smelled the odor of liquor in the car. I then went to the back end of the car and raised up the cover and saw a pair of...