Robinson v. Commonwealth

• Decision Date: 30 January 1925
• Parties: Robinson v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

207 Ky. 53

Robinson v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 30, 1925.

1. Arrest — In Misdemeanor Cases, Arrest Without Warrant is Authorized Only where Offense Committed in Officer's Presence. — Under Ky. Stats., section 1309, arrest without warrant is authorized in misdemeanor cases only where offense is committed in officer's presence.

2. Arrest — Offense of Carrying Concealed Weapon Held Committed "In Officer's Presence" in Manner to Justify Arrest. — Offense of carrying concealed weapon held committed "in officer's presence," so as to warrant arrest, under Criminal Code of Practice, section 36, subsection 2, where defendant wore overalls and officer could see imprint of pistol in pocket "well enough to know that it was a pistol."

3. Weapons — Pistol Carried in Overalls Pocket so that Form was Visible, Held "Concealed," Within Statute Prohibiting Carrying of Concealed Weapons. — Pistol carried in overalls pocket in such manner that officer could discern its form well enough to know what it was held nevertheless "concealed," within statute prohibiting carrying of concealed weapons.

Appeal from Pike Circuit Court.

ROSCOE VANOVER for appellant.

FRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE CLARKE.

Affirming.

Appellant was arrested by a deputy sheriff without a warrant, upon the charge of carrying a concealed deadly weapon, and was convicted upon the evidence of the arresting officer. Whether or not this evidence was competent is the first question presented by this appeal, and the only one argued by counsel, and this in turn depends upon whether or not the arrest without a warrant was authorized by subsection 2 of section 36 of the Criminal Code, which provides:

"A peace officer may make an 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."

As the offense for which the defendant was arrested is a misdemeanor and not a felony (Kentucky Statutes, 1309), the arrest was authorized only if the offense was committed in the presence of the officer and not if he merely had reasonable grounds for so believing. As stated in Hughes v. Commonwealth, 19 Ky. L.R. 501, 41 S.W. 294:

"`In the presence of' in the statute means in the sight of, or that the act be done in such a manner that the officer can detect it by sight or hearing as the act of the accused. It does not apply to a case where he cannot detect the act but merely has a suspicion."

The officer testified that at the time of the arrest the defendant had on overalls, and that he could see the imprint of the pistol in his pocket "well enough to know that it was a pistol" before he made the arrest. It is therefore clear that the act was done in the presence of the officer within the meaning of the statute, since it was done in such manner that he could detect it by sight.

Obviously, this is a very different state of fact from that we had before us in Banks v. Commonwealth, 202 Ky. 762, 261 S.W. 262, upon which appellant relies, and where, as stated in that opinion, the officer "could see some kind of bulk in the front of his (defendant's) shirt but could not see what it was." Neither is this case on its facts similar or analogous to those in which we have held that an officer is not authorized to arrest a person upon a charge of unlawfully possessing intoxicating liquors by reason of...