Wilson v. Com.

• Decision Date: 06 May 1966
• Citation: 403 S.W.2d 705
• Parties: Francis WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 705

403 S.W.2d 705

Francis WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 6, 1966.

Rehearing Denied July 1, 1966.

Leland H. Logan, J. Davis Francis, John David Cole, Bowling Green, for appellant.

Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.

WILLIAMS, Judge.

Appellant Francis Wilson was convicted of storehouse breaking as a third offender and given a sentence of life imprisonment. He appeals from the judgment of the Monroe Circuit Court.

The basic facts are as follows: O. E. Comer, the operator of a general store located about nine miles from Tompkinsville, in Monroe County, testified that on June 6, 1964, around midnight, the burglar alarm went off and two men were seen running from the store carrying a satchel. Tompkinsville city policeman Joe Petitt and city police judge Elmer Turner and state trooper Robert Stivers were called to the store and they proceeded to make a search. A car was found about a quarter of a mile from the store on a dead-end gravel road. After removing the coil on the motor, Petitt and Turner waited in the weeds near the car and Stivers left to check the ownership of the car. After they had waited almost an hour, one man walked by the car. About 15 minutes later appellant approached the car, opened the trunk, put on a Warren County license plate, took off a Webster County plate and threw it into the weeds. He then tried to start the car. Petitt arrested him, and Turner searched him and allegedly found a pistol on him which had been removed from the store.

The pistol was the only evidence which linked appellant with the storehouse breaking. He testified that Petitt did not make the arrest until Turner had searched him. No search warrant was obtained. The satchel was later found about 200 yards from the car. No fingerprints were introduced to link appellant with the pistol, satchel, or the store itself.

Appellant testified that he had sold whiskey to a man from Tennessee and the exchange had been made on this dead-end road. Testimony was given by a liquor salesman in Bowling Green that appellant had purchased $569.20 worth of whiskey at 8:30 p.m. on June 5, 1964, and a large amount of money was found on appellant after his arrest. Appellant contended that the bootlegging was the reason for his suspicious activities. However, he did not produce as a witness the man who had allegedly bought the whiskey.

Appellant was taken into custody and was not allowed to consult an attorney until the next day. During the period of detention no evidence which was used at the trial was elicited from him except his fingerprints. They were used to prove he was the same man who had previously been convicted in the Warren Circuit Court in order to establish the case under the habitual criminal act.

Appellant elected to take the stand, and on cross-examination the following questions and answers were made:

'67 Did you ever know Elmer Turner before?

A Yeah I have heard of him.

68 Did you ever see him?

BY MR. HOLLINGSWORTH: (defense attorney) TELL IT, TELL IT.

A Yes, I have knowed Elmer Turner quite a few years. He killed two of my wives own cousins.

69 Did what?

A He killed two of my wives own cousins.

70 That before you killed this man or afterwards?

A What do you mean, which one did I kill?

71 Didn't you kill a man a few years ago?

A I shore did. He robbed a place, and I caught him on the road. I shot him. I didn't aim to, I tell you that, I sure didn't aim to.

72 Did you kill him to keep him from talking?

BY MR. HOLLINGSWORTH: YOUR HONOR, PLEASE I OBJECT.

BY THE COURT: OBJECTION SUSTAINED. I think you both have gone far afield.

BY PAUL CARTER: HE BROUGHT THAT IN FIRST.'

Appellant made a motion for a mistrial which was overruled. However, the trial judge did admonish the jury to disregard the testimony with reference to any killing.

Appellant now argues that this line of questioning which called to the jury's attention information which tended to show appellant had committed another crime, which was independent of and unrelated to the one for which he was on trial, was reversible error. He relies on Turpin v. Commonwealth, Ky., 352 S.W.2d 66 (1961), and Scamahorne v. Commonwealth, Ky., 357 S.W.2d 30 (1962). Appellee counters that this general rule does not apply in a case where the defense counsel precipitated the questions on the part of the Commonwealth and also filed to make a timely objection thereto.

Defense counsel made his objection about as soon as could be expected in the heat of the trial. This Court is not prepared to hold that an objection made two questions late is not timely and will not be considered. It can likewase hardly be contended that the defense counsel's action in stating 'Tell it, tell it,' precipitated the question about appellant killing a man 'to keep him from talking.'

The introduction of this testimony was undoubtedly erroneous, but the real question is whether it constituted reversible error or was merely harmless error upon consideration of the entire case. RCr 9.24, 9.26. The answer, in our judgment, is that the admonition of the court cured the error which was not of such gravity as to have been a cause for reversal.

Appellant next contends that the arrest was unlawful and therefore the evidence (the small gun which was the only evidence which linked appellant with the storehouse breaking) obtained incident to this arrest was not lawfully introduced. KRS 431.005 reads as follows:

'(1) A peace officer may make an arrest in obedience to a warrant, or without a warrant when a felony or misdemeanor is committed in his presence or when he has reasonable grounds to believe that the person being arrested has committed a felony.

'(2) A private person may make an arrest when a felony has been committed in fact and he has reasonable grounds to believe that the person being arrested has committed it.'

Appellee seems to concede that Turner and Petitt should be treated as private persons since they were outside the territorial limits of the city. Brittain v. United States. Fidelity & Guaranty Co., 219 Ky. 465, 293 S.W. 956 (1927).

Here, a felony had in fact been committed, and the only issue is whether, after reviewing all the pertinent facts, Petitt or Turner had reasonable grounds to believe that appellant had committed the felony. Probable cause or reasonable grounds is defined in 5 Am.Jur.2d, Arrest, section 48, where it is stated:

'The existence of 'probable cause,' justifying an arrest without a warrant, is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.

'Probable cause does not depend on the actual state of the case in point of fact, as it may turn out upon legal investigation, but on knowledge of facts and circumstances that would be sufficient to induce a reasonable belief in the truth of the accusation. It depends on the facts known, at the time of the arrest, to the person by whom the arrest is made, from which it follows that an arrest cannot be justified by what a subsequent search discloses. On the other hand, if probable cause existed at the time of the arrest, the fact that investigation proves the person arrested to be innocent does not make the arrest unjustifiable.

'In determining probable cause, all the information in the officer's possession, fair inferences therefrom, and observations made by him, are generally pertinent; and facts may be taken into consideration that would not be admissible on the issue of guilt. * * *'

The facts which support the reasonable grounds are as follows: (1) The out-of-county car parked about a quarter of a mile from the scene of the break-in on a dead-end road; (2) the time of day (1:30 or 2:00 a.m.); (3) the switching of license plates; (4) the car's being equipped as a police car (appellant was a contable in Warren County); (5) the fact that a man had approached the car 15 minutes earlier.

Appellant contends that preliminary facts on which the admissibility of the evidence depends are in dispute and therefore the matter should have been submitted to a jury. This contention is erroneous since there is no dispute as to the pertinent facts within Petitt's knowledge when he made the arrest. Therefore, the rule concerning submitting conflicting issues to the jury...