Morse v. Commonwealth

265 S.W. 37, 204 Ky. 672, 1924 Ky. LEXIS 547

• Court: Court of Appeals of Kentucky
• Decided: October 3, 1924
• Status: Published

Opinions

Opinion op the Court by

Turner, Commissioner —

Reversing.

From a conviction under an indictment charging him with the unlawful manufacture of spirituous liquor, appellant appeals.

Boitnott, a justice of the peace, and a resident of the same neighborhood, on one Saturday was passing through appellant’s farm, along a path or roadway about fifty or seventy-five yards from thq edge of some timber on- the side of a hill; thinking he detected the odor of whiskey, or the mash used in making it, he left the path or roadway and went into the timber in search of the source of the odor. He found what he and the other witnesses refer to as a “dugout” in the side of the hill. There had been a sort of excavation in the hillside and the sidewalls of the structure, and presumably the rear wall, were the. hill itself, but in front there was a door securely fastened and locked. No other opening in the structure is referred to except that on the top, and in the improvised roof was a hole left, or put' there, presumably for the escape of smoke. Boitnott did not at the time force his way into the dugout, but peered through the opening in the top; it being dark therein, however, he could only discern the elbow of a pipe, and saw nothing more at that time. There was a deputy sheriff in the neighborhood to whom Boitnott disclosed these things, and on the same day the two again visited the place and took with them a flashlight which they used in looking through the hole in the roof. In this way they discovered some barrels in the dugout, and a stove pipe leading up near to the hole. The two officials continued to watch the place for a day or two, and during that time saw appellant and another going toward and coming from the direction of the dugout, but did not see either of them enter it. On the following Tuesday the two officers, with some others who were deputized, went to the place and the- door still being securely locked and fastened, was, under the orders and' directions of the officials, prized open by force, and there were found therein several barrels of mash, some half-barrels and some empty barrels, some tubs and buckets, some peaches and a candy jar about half full of whiskey. About 100 or 150 yards away a still was found which some of the witnesses that morning had seen appellant and another moving from the direction of the dugout.

No one saw the still in operation by appellant or any one else, although there was physical evidence it had been operated in the dugout.

When the door of the structure was thus forcibly opened and the evidence disclosed, the officials and those deputized by them were acting under a search warrant signed by Boitnott, the justice of the peace. There was, however, no affidavit filed before the justice authorizing the issue of the search warrant, the only authority therefor being a certificate signed by the justice and appended to the search warrant, wherein he, in his official capacity, ordered-the search made,

“after seeing distill, barrels of malt, and pipe lines connected to same on the farm of Price Moose, ’ ’

to which there is signed the name of the justice in his official capacity.

Manifestly the search warrant was invalid and its issual unauthorized, for under the express terms of section 10 of our Constitution no such warrant shall be issued

“without probable cause supported by oath or affirmation. ’ ’

It is true section 31 of the Criminal Code purports to give to a magistrate the power to issue a warrant of arrest from his personal knowledge, but even that provision which has reference alone to warrants of arrest has been expressly declared to be unconstitutional and void, in so far as it purports to authorize the issual of even a warrant of arrest upon the magistrate’s personal knowledge. Clark v. Hampton, 163 Ky. 698.

The lower court properly held the search warrant was invalid, hut permitted the introduction of the evidence disclosed by the search upon the idea that it was such a case as did not require a search warrant. The question is then whether the “dugout” on appellant’s farm, a quarter of a mile from his dwelling house, is protected from search under the provisions of section 10 of the Constitution.

That section by its terms explicitly guarantees that

“the people shall be secure in their persons, houses, papers and possessions from unreasonable search and seizure.”

The language of the quoted provision convincingly shows on its face it means to include more than a mere dwelling house when it uses the word “houses;” an individual ordinarily has one dwelling house, but he often has other houses used by him in connection therewith, and «the fact that the provision uses the plural, and not merely the singular, would appear to be conclusive it was the purpose to protect from unreasonable search not only the dwelling house but other houses, and especially such other houses as are erected on his farm where his dwelling house is situated and used in connection therewith, and as a part ofjiis domicile.. We know from common experience and ordinary observation that men often have protected and sheltered many of their valuable possessions in houses other than their dwelling houses, and in the light of this knowledge and the use of the plural word in the constitutional provision, it would be abortive of its plain purpose to say its meaning was to protect from unreasonable search only the dwelling house.

But was the structure designated as a “dugout” in fact a house? It had four sides,.it had a door securely locked and fastened, and it had another aperture in the roof apparently for the escape of smoke. It is true three of what might be termed the walls of the structure were furnished bv digging back into a hill, but these three walls were supplemented by a fourth in front, and there was placed over the four a roof or covering of some kind designed to protect the persons and things therein from the elements. The three walls produced by the excavation in the hillside, while furnished by the hill itself, were really brought about and constructed by the labor furnished by man in making the excavation, while the fourth wall in front was wholly of man’s making, and he arranged it all so that he could have an opening in the wall so wholly constructed by him, and could at his pleasuré fasten or unfasten that opening. The very fact that this structure was designed to, and did, protect from the elements those who might use it, as well as the personal possessions that might be placed in it, appears to make it conclusive that it was in fact a house; and this is all emphasized by the fact that it had a place of entry and exit, and that the place might be securely locked and fastened.

We are constrained, therefore, to the belief that the so-called “dugout” was a house within the meaning of section 10 of the Constitution, and as such is embraced in the constitutional inhibition against unreasonable searches and seizures. 30 C. J., p. 472 ; 21 Cyc., p. 1112; Goater v. Ely, 80 N. J. Eq. 40.

It results from what has been said the evidence disclosed by the search was, under many opinions of this court, imcompetent.

But wholly independent of the evidence disclosed by this forcible search, there was sufficient evidence to authorize the submission of the case to the jury. The house was on appellant’s land and under his control; he and another were seen the very morning of the search carrying a still away from it, and that still was found 100 or 150 yards away. Appellant had been seen more than once within a few days going to and coming from the direction of this structure, and there was a well beaten pathway leading from it to appellant’s home, and there was a roadway showing wagon tracks and slide tracks from this structure right up to or near appellant’s house. In addition to these and other circumstances, there is evidence of his bad reputation as to the making and handling of illicit liquor.

Because of the error in admitting the evidence disclosed by the illegal search, the judgment is reversed with directions to grant appellant a new trial and for further proceedings consistent herewith.

Whole court sitting. Chief Justice Sampson and Judge McCandless dissenting.