Parrott v. Com.
| Decision Date | 17 February 1956 |
| Citation | 287 S.W.2d 440 |
| Parties | Jack PARROTT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
J. B. Johnson, Bert O. Howard, Harlan, for appellant.
J. D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., for appellee.
Jack Parrott appeals from a judgment of the Harlan Circuit Court which found him guilty of carrying concealed a deadly weapon in violation of KRS 435.230. The sentence imposed was two years in the penitentiary. He seeks a reversal upon the ground that he was entitled to a peremptory instruction of not guilty.
The record discloses that on December 3, 1954, about 8:10 in the evening, three peace officers arrested Parrott in the city of Cumberland. Information had been previously received by some of these officers that Parrott was drunk and disorderly at the residence of one Ike Lloyd, who resides outside the city limits. He had left the Lloyd house before the officers arrived there and he was later located on the inside of a filling station within the city at the time he was apprehended. Several minutes after Parrott reached the filling station, the officers happened upon him, walked directly to him, took him into custody without a warrant, and thereafter preferred a formal charge of drunkenness in a public place against him. After he was arrested, one of the officers searched him and found a small revolver in his overcoat pocket. The evidence was in dispute at the trial as to whether the revolver was concealed. He was tried on December 31, 1954, in quarterly court before a jury on the drunkenness charge and was found not guilty.
Parrott was afterwards indicted for carrying concealed a deadly weapon, and upon arraignment entered a plea of not guilty. During his trial under this indictment objection was interposed to all testimony sought to be introduced by the Commonwealth which tended to show Parrott was intoxicated on the occasion of his arrest, but this evidence was admitted, with Parrott reserving an exception thereto. Parrott also undertook to establish by the officers who arrested him that upon his trial in quarterly court on the charge of being drunk publicly there was a verdict of 'not guilty' returned by the jury. The lower court ruled this character of testimony to be incompetent on the theory that the quarterly court record was the best evidence on this issue and that this record was available. By avowal, he was able to set forth the fact of his acquittal in the quarterly court proceeding in the transcript of evidence which avowal was made a part of this appeal. Both at the conclusion of the Commonwealth's and Parrott's testimony, motions for a directed verdict were made, which were overruled, Parrott excepting.
Parrott maintained below and insists on this appeal evidence of the weapon found concealed on his person should have been excluded from the consideration of the jury, since it was judicially determined with finality in quarterly court he was not guilty of the public drunkenness charge and, therefore, the discovery of the pistol was the result of an illegal search. We are of the opinion this contention is meritorious.
Under Section 10 of the Constitution of Kentucky a person is protected from unlawful search and seizure. Search of a person's body by a peace officer can be made only when the accused is under an arrest properly authorized by law. A search is justifiable only as an incident to a lawful arrest; if the arrest is unlawful, the search is also unlawful. See 4 Am.Jur., Arrest, sec. 68, p. 48.
Section 36 of the Criminal Code of Practice authorizes a peace officer to make an arrest without a warrant for a public offense committed in his presence. The rule is well established that an officer cannot arrest on mere suspicion or information in a misdemeanor case. See Bowman v. Commonwealth, 211 Ky. 118, 276 S.W. 1057. In the case of Hughes v. Commonwealth, 41 S.W. 294, 19 Ky.Law Rep. 497, it was definitely held that an officer had no authority to make an arrest for a misdemeanor without a warrant unless a public offense had been committed in his presence, or for a...
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