Simmons v. Commonwealth

• Decision Date: 06 June 1924
• Citation: 203 Ky. 621,262 S.W. 972
• Parties: SIMMONS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

262 S.W. 972

203 Ky. 621

SIMMONS v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 6, 1924

Appeal from Circuit Court, Barren County.

Buford Simmons was convicted a second time of unlawfully possessing intoxicating liquor, and appeals. Reversed for new trial.

White &amp Smith and W. E. Jones, all of Glasgow, and Rodes & Harlin, of Bowling Green, for appellant.

Frank E. Daugherty, Atty. Gen., and Charles F. Creal, Asst. Atty Gen., for the Commonwealth.

O'NEAL J.

Appellant prosecutes this appeal from a judgment of the Barren circuit court sentencing him to one year's confinement in the penitentiary upon a second conviction of the offense of unlawfully possessing intoxicating liquor. His sole ground of complaint is that the evidence establishing his guilt, and to which he objected and excepted when introduced, was incompetent, because it was obtained by an illegal search in violation of section 10 of the Constitution of Kentucky. Appellant's bad reputation for bootlegging was proven by numerous witnesses of high standing; his previous conviction of the same charge was shown by the court records; and his guilt of the present offense was established by the testimony of the deputy sheriff who made the arrest. Appellant did not testify for himself or offer any evidence in his own behalf.

This court has repeatedly held that evidence secured by an illegal search is incompetent. In order to determine whether or not the evidence upon which appellant was convicted was illegally obtained it will be necessary briefly to review the facts.

But one witness, W. J. Combs, testified to the facts constituting the offense. He testifies that he was a deputy sheriff and nightwatchman in the city of Glasgow, and that about 1 o'clock in the morning on a certain day in January, 1924 while making his regular rounds as such night watchman, he heard a terrific noise, like something falling, about 100 yards distant from him. The noise sounded like breaking glass, and he says he "reckons it was a flue fell on a roof." After hearing this noise, he proceeded to his next post, where he punched the clock, and he then went on down towards the place from which he thought the noise came. As he was passing the home of a man named Johnson the latter called to him, and asked what the noise was; he replied he did not know, and propounded the same question to Johnson, and asked him where he thought the noise came from. The latter replied that he thought it was down in the Hall. The Hall seems to be the nickname of a building used jointly as a Greek restaurant and for other purposes. He entered the Hall or building through an open door, and walked on back in the building until he came to a room in which there was a light burning, and which he knew to be the room of appellant. The door was pulled to and he knocked upon it, whereupon it opened as the result of the knock, and he then saw the appellant asleep in his bed, and some seven or eight feet from him he observed two fruit jars containing half a gallon of moonshine whisky. There was another jar on the table, but it contained water, and he asserts he could distinguish the two by sight by reason of the fact that he claims water is clearer than moonshine whisky. He thereupon entered appellant's room, and upon the latter's awakening, the witness asked him what the noise was, and he replied that he had been asleep and did not know; witness then asked appellant "what that (referring to the whisky) meant setting over there on the table," and appellant replied "It was just there." Witness informed appellant he would have to take him and the whisky, but appellant insisted he was sick, and, as he was already under bond, he would report the next morning. Witness consented to this arrangement, took the whisky with him and left, and it is not contended that he made any further search for the source of the noise which he was investigating.

It is earnestly insisted for the commonweath that the witness in the performance of his duty as a peace officer in investigating the unusual noise which he heard had a legal right under the circumstances to enter the building through the open door and to knock upon the door of appellant's room; that, this being true, the fact that the door came open when he knocked upon it, thus disclosing appellant in the possession of moonshine whisky, was not the result of an illegal act upon the part of the witness. With this we cannot agree.

The evidence is not clear as to the character of the building in question, whether open to the public or otherwise but it is shown that it was occupied by a restaurant and was used for other purposes. Nor does it appear through what part of the building the witness entered and passed to reach appellant's room, but in the absence of any evidence to the contrary we may assume the witness was within his legal rights in entering the building through the front door, which he states was open. It does not follow, however, that he had a right to force an entrance to appellant's room. While it is true he states in effect that he did not intentionally open the door into appellant's room, that he simply knocked upon it...