Taylor v. Com.
| Decision Date | 20 May 1966 |
| Citation | 403 S.W.2d 713 |
| Parties | Tommy TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Fritz Krueger, Somerset, for appellant.
Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
DAVIS, Commissioner.
A jury found Tommy Taylor Guilty of violating KRS 433.190, in that he broke and entered a tobacco barn with intent to steal tobacco belonging to Commodore Dykes from the barn. This appeal is from the judgment imposing sentence of imprisonment for two years pursuant to the jury's verdict.
The three questions on appeal, as stated by appellant in his brief, are:
'1. Whether a search made by officers who were on the appellant's premises wrongfully and without any warrant was illegal?
'2. Whether the trial Court participated--by its questions and comments on rulings--in the prosecution to an extent and in a manner that prejudiced the rights of the appellant to a fair trial?
The alleged theft occurred during the night of December 4, or early morning hours of December 5, 1964. Dykes said that about 'eleven dozen' hands of tobacco had been stolem from the barn in which he had his tobacco housed. Dykes, in company with Pulaski County Sheriff Phelps and State Detective King, examined the crime sence on December 5. They discovered three sets of footprints in the soft earth in the barn area; also observed by them were some hands of tobacco and crumblings of tobacco which appeared to have fallen off other hands of tobacco taken from the barn.
Dykes and the officers related that they were able to follow the trail of footprints and tobacco particles from the barn to the home of appellant. The footprints were described as indicating that an adult man and a boy and girl (or two boys) had made them.
The appellant was not at home when Dykes and the officers arrived there. After some conversation with appellant's wife, Dykes went into a small shed situated on a hill back of appellant's dwelling. Dykes testified that he found some of his tobacco in the shed, concealed beneath some other tobacco. The officers said that they did not enter the shed until after appellant had come on the scene, although they said they could see tobacco in the shed, merely by viewing it from the outside.
Dykes and the officers had not been on appellant's premises long until appellant arrived there. Appellant disclaimed any knowledge of the presence of any tobacco on his place, and told the officers he had no objection to their making a search about the premises. Then the officers entered the shed and uncovered the Dykes tobacco which had been hidden from view by other tobacco piled on it. A hand of the Dykes tobacco found in the shed was exhibited to the jury along with a hand of Dykes' tobacco which had not been stolen. Similarities of the 'tie' on these hands was spoken of in the evidence (and was visually before the jury via the physical presentation of the hands of tobacco).
Appellant continued to disclaim all knowledge of the tobacco, or how it came to be in his shed. He offered to give Dykes $30.00, plus the 'non-Dykes' tobacco in the shed to let the matter drop. Dykes declined the offer.
A witness testified to having been aroused by the barking of his dogs at or about the time of the theft. The witness saw two people, apparently with tobacco, but he could not positively identify them, although he said positively that appellant was not one of the persons he saw. The appellant offered no evidence in his behalf, but made a timely motion for a directed verdict of acquittal, which the trial court overruled.
It will be observed that appellant's attack on the legality of the search relates to the 'search made by officers.' No complaint is made respecting the search made by Dykes, victim of the theft, and a private citizen. The simple answer to appellant's assertion of error about the search is that the officers testified that appellant consented to it. Their testimony in this regard is entirely unimpeached. This case is not governed by Johns v. Commonwealth, Ky., 394 S.W.2d 890. In Johns the purported consent was reluctantly given after Johns had been...
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