Curry v. Commonwealth , 199 Ky. 90 ( 1923 )

Opinion of the Court by

Judge McCandless

Affirming.

In the Webster county court each of the aboye named appellants was tried and convicted on a separate warrant on the charge of unlawfully transporting spirituous liquor. On an appeal to the circuit court in a joint trial both were again convicted and the punishment of each fixed at a fine of $200.00 and imprisonment for thirty days, and also each was required to execute a peace bond for $1,000.00.

It is now urged that incompetent evidence was admitted and in the latter case that the warrant was insufficient. It appears that the sheriff and his deputies responded to a hurried call to come to the country, going in a Ford machine, and near the place of trouble met the defendants in a large six cylinder Marmon. car. Heflin was driving and Curry laying on the back seat with his feet hanging out and his hands dropped down. The- sheriff discovered they were drunk and endeavored to arrest them for operating an automobile while intoxicated; he notified them that he was an officer and ordered them to halt, placing his machine directly in front of them. The driver paid no attention to him, but drove around him and up the road as rapidly as he could, with the sheriff following, and in the meantime notifying one Hays, deputy jailer at Dixon, over the phone of the facts, and that he was in pursuit, and for him to stop and hold them until he (the sheriff) arrived.

Hays was working at a garage and the defendants having distanced the sheriff approached it at the rate of ten or twelve miles an hour. He told them to halt and they failing to do so he jumped on the running board of the car, turned the ignition switch and stopped the car and held them there until the arrival of the sheriff a few minutes afterward, whereupon the latter placed them under arrest.

About the time the machine was stopped Curry arose from the rear seat -and' picked up a glass jar of liquor and dashed it to pieces on the bottom of the car. All of the witnesses say that this had the odor of whiskey.

After being taken in custody and in formulating the warrants for trial they were charged with the unlawful transportation of liquor as above indicated, evidence of this offense having been divulged in making their arrest on the former charge.

Unquestionably from the evidence the defendant Heflin was driving the machine while intoxicated and in the presence of the officers and the sheriff had the right to arrest him therefor. Under section 41 of the Criminal Code he had the right to summon any number of persons he needed to assist him. If after demanding defendants ’ arrest the latter endeavored to escape it would seem that the Code provision, supra, would authorize him to telephone ahead for assistance and such authority would authorize Hays to hold him until the sheriff arrived. Even if it did not, his arrest was made by the sheriff and the defendant was arrested for the offense committed in his presence, and its- legality would not be affected by the fact that Hays delayed the defendant until such arrival. If his conduct was illegal Hays might be liable civilly to the. defendant, but as the arrest was made by the sheriff it is in nowise affected thereby. It is true that for a time defendant was out of the officer’s sight, but if the offense was committed in the officer’s presence and he then attempted to make the arrest and pursued the defendant until that was consummated it would be trifling with the facts to say that such arrest could not be made for the offense first committed in the officer’s presence. Further, if lawfully arrested for this purpose, any evidence thereby discovered would be admissible against the defendant.

It might be said that Curry was not guilty of the, first offense as he was not driving the machine, but as the evidence was developed in the arrest of Heflin and in a legal manner it. is admissible for all purposes. It thus transpired that there was sufficient evidence that both were committing the offense of unlawfully transporting liquor in the presence of the sheriff, and he was authorized to arrest them both on that charge. The warrant sets out the offense charged with sufficient particularity. The only criticism of it is that in the direction for arrest the name of the ■ defendant is left blank. This is immaterial as the defendants were already in custody and did not have to be rearrested, the only object of the warrant being to formulate the charge against him.

Perceiving no error judgment is affirmed.