Commonwealth v. Flynn

Opinion op the Court by- Judge Clay — Certifying tbe law. Howard Flynn was indicted by the grand jury of Campbell county for the offense of maintaining and keeping at 316 West Fonrth street, in the city of Newport, a room, building and premises wherein money was bet and wagered on tbe result of horse races. On the calling of the case for trial Flynn moved “to quash the evidence of any officer of the Kentucky National Guard gained through ail unlawful search of the premises at 316 West Fourth street, Newport, Cainpbell county, Kentucky, or any other evidence gained through said unlawful sear'ch.” In support of the motion to quash, counsel for Flynn offered, and the court admitted over the objection of tbe Commonwealth, the evidence of Roy H. Newitt, captain of the Kentucky National Guard, who testified in substance that be, accompanied by another officer and four privates, went to the premises at 316 West Fourth street in Newport. There they found a residence with a side yard located close to the street. They entered the yard and walked up the side steps, where 'they found "a room containing seven telephones. There was no oiie on the premises at the time and they had no search warrant. ■On hearing the evidence of .Captain Newitt, the court sustained the motion to quash all evidence obtained [691] through the search. Thereupon the Commonwealth’s attorney stated that he had no further evidence in support of the indictment, and the court entered an order dismissing the indictment. The Commonwealth has appealed. At the outset we may say that, under onr practice, objection to the admission of evidence obtained by ah illegal .search and seizure should be made when .the evidence is offered, and we find no authority in this jurisdiction for the procedure adopted by the trial court. Youman v. Commonwealth, 189 Ky. 152, 224 S. W. 860. But passing the question of practice, the offered evidence was not sufficient to justify the court’s action in sustaining the motion to quash all evidence obtained by the search. The evidence did not show that the accused owned, leased or occupied the premises searched, and it is no valid ground for the rejection of evidence that it was obtained by the search of another’s premises without a search warrant. Bowling v. Commonwealth, 193 Ky. 642, 237 S. W. 381 Fletcher v. Commonwealth, 196 Ky. 625, — S. W. —. Wherefore this-opinion is certified as the law of the case.