Bundy v. Commonwealth

143 S.W.2d 1054, 284 Ky. 119, 1940 Ky. LEXIS 448

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 15, 1940
• Status: Published

Opinion

Opinion of the Court by

Judge Rees

Reversing.

The appellant, Bob Bundy, was tried under an indictment charging him with carrying concealed on’ or about his person a deadly weapon, to wit, a pistol, and was convicted and' his punishment fixed- at a fine of $50 and imprisonment in the county jail for a term of ten days and disfranchisement for two years. He seeks a reversal of the judgment on two grounds: (1) There was no competent evidence to sustain the verdict and his motion for a directed verdict of acquittal should have been sustained; and (2) the instructions are erroneous.

Two peace officers testified that a pistol was taken from appellant, but whether it was taken from the automobile in which he was riding or from his person is not clear from the evidence. This evidence was objected to on the ground that it was obtained without a search warrant, and the objection was overruled. There is no evidence -that the officers had a search warrant or that appellant had committed any offense in their presence. It is conceded that they acted without a warrant of arrest. No citation of authority is needed to show that the objection to the evidence should have been sustained. With this evidence eliminated, there was no evidence authorizing a submission of the case to the jury.

The instruction complained of authorized the jury to convict appellant if he had on or about his person a deadly weapon, concéaled or unconcealed. The Attorney General frankly concedes that the judgment should be reversed upon both of the grounds relied upon by appellant.

The motion for an appeal is sustained, the appeal granted, and the judgment reversed with directions to grant appellant a new trial.