Veal v. Commonwealth

Citation251 S.W. 648,199 Ky. 634
PartiesVEAL v. COMMONWEALTH.
Decision Date05 June 1923
CourtKentucky Court of Appeals

Appeal from Circuit Court, Clark County.

Phillips Veal was convicted of unlawfully having in possession a moonshine still, and he appeals. Reversed.

Rodney Haggard, of Winchester, for appellant.

T. B McGregor, Atty. Gen., and Chas. W. Logan, Asst. Atty. Gen for the Commonwealth.

SAMPSON C.J.

Appellant Veal, is a colored man living with his wife at his home in a colored district of Winchester. On January 2, 1923, the chief of police and two other policemen of the city of Winchester called at his house at nighttime, when he (Veal) was away from home, and asked his wife, who came to the door, if Lawrence Green, a colored man from Ohio, was in the house, and upon being told by the wife that he was not in the house, the chief of police asked permission to enter the house and search for Green. This she readily consented for them to do. Upon this permission the chief of police and another policeman entered the house and began to search for Green. Before entering the house he sent one of his assistants to the rear of the house, and he smelled sour mash, and to find it looked in at a window and under the floor in the basement, and discovered there some barrels which smelled of sour mash. The chief and his assistant also smelled sour mash in the house, and they searched the kitchen, and by the side of the stove they found a fully equipped distillery for the making of whisky, with pipes running down through the floor to the mash barrels in the cellar. Appellant was not at home. Later he was arrested on a charge of unlawfully having in possession a moonshine still, and upon being tried was found guilty and his punishment fixed at a fine and imprisonment. Appellant objected to the evidence given by the policemen concerning the finding of the distillery in his house because unlawfully obtained, and at the conclusion of the evidence moved the court to exclude all the evidence concerning the finding of the distillery and the barrels of mash, which would have left no evidence to support the verdict.

This court has held in a number of cases that a search made of the home of an accused without a search warrant regular upon its face was unlawful, and the evidence so obtained would not be admitted against him on a trial for unlawfully having in possession or selling liquors, or unlawfully having in possession a moonshine still. Mattingly v. Commonwealth, 197 Ky. 584, 247 S.W. 938; Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303; Ash v. Commonwealth, 193 Ky. 552, 236 S.W. 1032.

It is earnestly insisted, however, by the commonwealth that inasmuch as the policeman who went to the rear of the house and found the mash barrels, which were in plain view, was a competent witness, his evidence was properly admitted. This is contrary to the rule recently laid down by this court in the case of Jordan v....

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16 cases
  • State v. Bonolo
    • United States
    • United States State Supreme Court of Wyoming
    • October 16, 1928
    ......L. R. 1284, which contains a thorough. discussion on the subject. See also Jackson v. State, 153 Tenn. 431, 284 S.W. 356; Coleman v. Commonwealth, 219 Ky. 139, 292 S.W. 771; Hammond v. Commonwealth, 218 Ky. 791, 292 S.W. 316; Derefield. v. Commonwealth, 221 Ky. 173, 298 S.W. 382; Taylor. v. ... 797; Duncan v. Com., 198 Ky. 841, 250 S.W. 101;. Potowick v. Com., 198 Ky. 843, 250 S.W. 102;. Hart v. Com., 198 Ky. 844, 250 S.W. 108; Veal v. Com., 199 Ky. 634, 251 S.W. 648; Gilliland v. Com., 224 Ky. 453, 6 S.W.2d 467; United States v. Rykowski, (D. C.) 267 F. 866; In Re Tri-State ......
  • Cass v. State, 14624.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 22, 1933
    ...what they said in the Duncan Case, supra, could decide in Potowick v. Commonwealth, 198 Ky. 843, 250 S. W. 102, and Veal v. Commonwealth, 199 Ky. 634, 251 S. W. 648, that officers who had apparently the full and free consent of the wife to enter and search, in the absence of the husband, we......
  • State v. McLennan
    • United States
    • United States State Supreme Court of Idaho
    • January 3, 1925
    ...976; United States v. Slusser, 270 F. 818; Amos v. United States, 255 U.S. 313, 65 L.Ed. 654; Hampton v. State, supra; Veal v. Commonwealth, 199 Ky. 634, 251 S.W. 648.) taken from one as an incident to a lawful arrest must be taken by the arresting officer at the time and place of the arres......
  • Com. v. Sebastian
    • United States
    • United States State Supreme Court (Kentucky)
    • October 12, 1973
    ...9 Cal.3d 218, 107 Cal.Rptr. 157, 507 P.2d 1365 (1973). The decisions of this court are not entirely consistent. In Veal v. Commonwealth, 199 Ky. 634, 251 S.W. 648 (1923), it was held that the wife could not rightfully consent to a search of 'her husband's house.' In support of its holding t......
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