Nickell v. Com.
| Decision Date | 28 October 1955 |
| Citation | 285 S.W.2d 495 |
| Parties | Wendall Ray NICKELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Tom P. Senff, Mt. Sterling, for appellant.
J. D. Buckman, Jr., Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.
STANLEY, Commissioner.
Two police officers of Mt. Sterling received a call to go to the 'Knot Hole' in that city because 'a bunch of drunks' were there. On arrival they saw Wendall Ray Nickell staggering drunk. He sat down and one or the other of the officers (they testified) told him that he was under arrest and that he would have to come with them. The defendant testified that jerked him up and said, 'Wendall, let's go.' They lefted him up and searched him. He had a loaded pistol in his belt concealed by his sweater.
On his trial for the crime of carrying a deadly weapon concealed on his person, the defendant claimed he was not drunk when arrested but very sleepy because he had been up all night; but he admitted visiting some drinking places and drinking some beer in the 'Knot Hole' saloon that afternoon. His companions and the barkeeper corroborated his testimony. The officers testified that after they had searched him, Nickell said, 'Boys, I am drunk; don't put a charge of carrying a concealed deadly weapon against me.' He very positively denied making the statement.
The court properly submitted to the jury the question of the defendant's drunkeness for the purpose of determining whether he was lawfully arrested and, therefore, whether the search of his person was authorized. Conviction was dependent on the jury's finding that he was drunk, and the verdict of guilty implicitly so found. It is conceded here that that issue was settled, but the appellant contends that his arres' was illegal, hence, that the search was unauthorized, because the policemen did not notify him of their intention to arrest him and inform him of the charge.
Criminal Code of Practice, Sec. 394, makes it the duty of all peace officers to arrest a 'drunken person whom they may find at large, and not in the care of some discreet person.' Section 39, Criminal Code of Practice, which relates to the general subject of arrest, reads: 'The person making the arrest shall inform the person about to be arrested of the intention to arrest him, and of the offense charged against him, for which he is to be arrested, and if acting under a warrant of arrest, shall give information thereof, and...
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United States v. Baxter
...Dale v. Commonwealth, 186 Ky. 510, 217 S.W. 363 (1920); Sizemore v. Commonwealth, 279 Ky. 190, 130 S.W. 2d 31 (1939); Nickell v. Commonwealth, 285 S.W.2d 495 (Ky.1955); United States v. McGavic, 337 F.2d 317, 321 (C.A.6, 1964), cert. denied, 380 U.S. 933, 85 S.Ct. 940, 13 L.Ed.2d 821 (1965)......
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United States v. Clemmons, 17734.
...cause of his arrest." See also Love v. Bass, 145 Tenn. 522, 238 S.W. 94 (1921); State v. Parker, 81 Tenn. 221 (1884); Nickell v. Commonwealth, 285 S.W.2d 495 (Ky.1955); People v. Coffey, 12 N.Y.2d 443, 240 N. Y.S.2d 721, 191 N.E.2d 263, remittitur amended, 13 N.Y.2d 726, 241 N.Y.S.2d 856, 1......
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Thompson v. City of Louisville
...arrested fails to object to the arresting officer, he waives any right to complain later that the arrest was unlawful. Nickell v. Commonwealth, Ky., 285 S.W.2d 495, 496. Thus we find no evidence whatever in the record to support these convictions. Just as 'Conviction upon a charge not made ......
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Hopkins v. Com.
...one where the issue of legality of the search of the person was dependent upon a lawful arrest, as for public drunkenness, Nickell v. Commonwealth, Ky., 285 S.W.2d 495, or legality of a search of an automobile was dependent upon a violation of a traffic law. See Barnes v. Commonwealth, 305 ......