Youman v. Commonwealth

Decision Date05 October 1920
Citation189 Ky. 152,224 S.W. 860
CourtKentucky Court of Appeals

Appeal from Circuit Court, Hardin County.

Roy Youman was convicted of having in his possession intoxicating liquors for the purpose of selling them, and he appeals from the judgment of conviction, as well as from the denial of a motion to release certain spirits and deliver them to his wife, Birdie Youman. Reversed, with directions, and for further proceedings.

H. L James, of Elizabethtown, for appellant.

Chas I. Dawson, Atty. Gen., and W. F. Fowler, Asst. Atty. Gen for the Commonwealth.


In 1919 there was in force in this state a statute (Ky. St. § 2569b subd. 4) providing that it should be unlawful for any person to have in his possession spirituous, vinous, or malt liquors, for the purpose of selling them. Under this statute the county judge of Hardin county, in July, 1919, issued a warrant against Roy Youman, the appellant, charging him with the offense "of having in his possession spirituous, vinous, and malt liquors, for the purpose of sale," in violation of the statute quoted, and this warrant was placed in the hands of the sheriff of Hardin county, commanding him to forthwith arrest Youman and bring him before the judge of the Hardin county court to be dealt with according to law.

Armed with this warrant of arrest, the sheriff, accompanied by other officers, went to the premises and residence of Youman for the purpose of executing the warrant. They did not succeed in arresting Youman, but while on the premises concluded to and did make a search for the purpose of discovering any liquor that might be found thereon. Pursuant to this purpose they searched the premises and buildings, and found, under the floor of a small house near the residence of Youman, several gallons of whisky, which they took and carried away without the knowledge or consent of Youman or Mrs. Youman, and deposited it for safe-keeping in the jail of Hardin county.

It is admitted that neither the sheriff nor any of the officers who were with him had a search warrant, authorizing them to search the buildings or premises, although there was in force at that time a valid statute (Ky. St. § 2572b) providing that--

"In any county, city, town, district or precinct, where the sale of intoxicating liquors has been prohibited, or may be prohibited, whether by special act of the General Assembly or by vote of the people under the local option law of this state any judge or justice of the peace, when affidavits of three or more reputable persons are filed with him describing the premises as nearly as may be, where intoxicating liquors are sold or suspected of being sold, may by his warrant cause any house or building or other place to be searched by night or by day for the detection of any intoxicating liquors which are kept there for the purpose of sale," and "the judge, justice of the peace or court trying such offender or offenders shall adjudge the intoxicating liquors so seized contraband and confiscate the same at once unless notice of an appeal or an appeal of the case be taken."

Some time after this Youman surrendered to the sheriff, and later was put upon his trial in the circuit court under the warrant issued for his arrest. On the trial of the case the court, over the objection of counsel for Youman, permitted the sheriff and the other officers to testify concerning their search of the premises, and the discovery, seizure, and disposition of the liquor. It may also be here stated that this liquor was purchased by Youman or his wife at a time when and a place where it was lawful to sell and buy intoxicating liquor, but it was unlawful to have it in possession for purposes of sale, as charged in the warrant. So that the only offense Youman was guilty of was that charged in the warrant, and it must be conceded that the evidence of the sheriff and the other officers, describing the place where and the manner in which they searched for and found this liquor, was very material, and, if incompetent, highly prejudicial to Youman.

After the evidence had been introduced, the court instructed the jury in substance that if they believed, beyond a reasonable doubt, that Youman had in his possession, for the purpose of sale, spirituous liquors at the time testified to by the sheriff and others, they should find him guilty, and fix his punishment at a fine in any sum not less than $50 nor more than $100, and at confinement in the county jail not less than 10 days. Under the evidence and these instructions, the jury found Youman guilty, and fixed the penalty at a fine and imprisonment.

When the jury returned this verdict, and before judgment was entered therein, counsel for Youman moved the court to release and turn over to Birdie Youman, the wife of Roy Youman, the whisky taken as before stated, and then in possession of the jailer of Hardin county, there being evidence that the whisky was owned by her; but this motion was overruled by the court, and thereupon sentence against Youman was pronounced in conformity with the verdict, and it was adjudged, pursuant to a statute, that the whisky be confiscated, and poured by the sheriff of the county into a sewer, thus completely destroying the same. Youman suspended by an appeal bond the execution of the judgment, and on this appeal asks a reversal of it, upon the grounds, first, that the court committed error in permitting the sheriff and the other officers to give in evidence the facts relating to the search for and seizure of the whisky; and, second, in refusing to order it returned to Mrs. Youman.

But before considering the competency of the evidence objected to, or the ruling in respect to the return of the whisky that is complained of, attention will be directed to section 10 of the state Constitution, declaring that among the "inherent and inalienable rights of the citizen" is the principle that--

"The people shall be secure in their persons, houses, papers and possessions from unreasonable search and seizure; and no warrant shall issue to search a place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."

That it is a flagrant violation of this section of the Constitution, which is only applicable to public officers, for an officer of the law, without a valid search warrant, to search the premises or possessions of an alleged offender, for the purpose of discovering evidence against him, or to seize or take possession of, any species of property discovered in such unlawful search, or to search his person until after he has been lawfully arrested, has been made so plain by the words of the section, and is so well known to people generally, and has been so often decided by the courts of the country, that it would appear to be unnecessary to refer to any authority on the subject.

But, notwithstanding this general knowledge of the prohibition against unlawful search, it is not an uncommon thing in this state, for officers of the law, urged in some cases by popular clamor, in others by the advice of persons in a position to exert influence, and in yet others by an exaggerated notion of their power and the pride of exploiting it, to disregard the law upon the assumption that the end sought to be accomplished will justify the means, and therefore no attention need be given to constitutional authority, when public approval will commend the unlawful conduct. And, as there appears to be a growing public sentiment against the observance of or obedience to any constitutional restraint that obstructs or stands in the way of the desires of those who seek to accomplish their purposes, regardless of Constitution or laws, we will be at some pains to set down in this opinion the constitutional provisions protecting the citizen against unlawful search and seizure, and a few of the principal authorities in which the force and effect of these provisions have been explained and expounded.

In article 4 of the Amendments to the Constitution of the United States, it is declared that--

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches or seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It will be observed that there is no substantial difference between the wording of the clause in the federal and state Constitutions, and it is therefore very proper that we should refer to some opinions of the Supreme Court of the United States, for the purpose of illustrating the high regard in which these provisions are held by that great tribunal. In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, Justice Bradley, in speaking for the court in a case in which the admissibility of evidence secured by means of an unlawful search and seizure was challenged, said, in speaking of the incalculable value to the citizen of the section of the federal Constitution referred to, and in commending what was said by an English judge on the subject, that--

"The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court with its adventitious circumstances; they apply to all invasions on the part of the government and its employés of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal...

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