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(232 S.W.)

from a decision of the trial court upon a question which the Legislature has provided that there shall be no appeal from a decision upon, and has denied to this court the power to review such a decision. As early as Kennedy v. Com., 14 Bush, 340, and Terrell v. Com., 13 Bush, 246, it was said:

"Errors not subject to exception in the lower court cannot be considered or made ground for reversal in the Court of Appeals"

-and in Curtis v. Com., 110 Ky. 854, 62 S. W. 886, 23 Ky. Law Rep. 267, it was said that

The weight of authority "is that in all cases whereby section 281 of the Criminal Codes of Practice, an exception is forbidden, this court is without jurisdiction to reverse for error that might have been committed in passing upon challenges to the panel and for cause," etc.

Hence, only such decisions of the trial court in the conduct of a criminal prosecution may be reviewed upon an appeal, as the provisions of the Criminal Codes of Practice allow. All other questions are addressed to the trial court, and its decision thereon is final and conclusive. Section 340, Criminal Code, provides:

Section 199 of the Criminal Code defines a challenge to the panel as follows:

"A challenge to the panel shall only be for a substantial irregularity, in selecting or summoning the jury, or in drawing the panel by the clerk."

A challenge for cause is to the individual juror, general or particular, and section 206 defines a general challenge to be:

"That the juror is disqualified from serving in any case, or particular that he is disqualified from serving in the case on trial."

Section 207 provides as one of the grounds of challenge for cause to a juror is "a want of the qualifications prescribed in the General Statutes." The reasons which induced the Legislature to enact section 281, and thereby to render the decision of the trial court final, upon challenges to the panel and for cause, and to deny the accused the right of exception to such decisions and to this court the right to review the decisions of the trial court concerning such matters, are now very well understood, but the Legislature has never seen proper to change section 281, so far as it precluded the right of the defendant to except to a decision upon a challenge to the panel of the jury, or a decision upon a challenge of an individual juror for cause, and in construing that section it has been uniformly held that decisions of the trial court upon challenges to the panel of the jury and for cause, or decisions as to the manner in which the jury was selected, or as to the qualifications of jurors for jury service, are not subject to exception, and the action of the trial court in respect to decisions on such subjects, although the decisions may be erroneous and prejudicial to the accused, cannot be reviewed upon appeal by this court. The following decisions are cited as illustrations of the view this court Section 281, Criminal Code, provides as has taken of the provisions of section 281, follows:

"A judgment of conviction shall be reversed for any error of law appearing on the record when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby."

Section 280 of the Criminal Code is as follows:

"Upon the trial of criminal or penal prosecutions, either party may except to any decision of the court by which the substantial rights of such party are prejudiced, subject to the restrictions in the next section."

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and which we think fully sustains the views
herein expressed: Terrell v. Com., 13 Bush,
246; Kennedy v. Com., 14 Bush, 340; Curtis
v. Com., 110 Ky. 845, 62 S. W. 886, 23
Ky. Law Rep. 267; Morrison v. Com., 56
S. W. 516, 21 Ky. Law Rep. 1814; York
Ky. 606, 6 S. W. 579, 9 Ky. Law Rep. 759;
v. Com., 82 Ky. 360; Forman v. Com., 86
Powers v. Com., 114 Ky. 274, 70 S. W.
1007, 1186, 1350;
644, 1050, 71 S. W. 494, 24 Ky. Law Rep
S. W. 679; Daniel v. Com., 154 Ky. 606, 157
Alderson v. Com., 74
S. W. 1127; Ellis v. Com., 146 Ky. 715, 143
S. W. 425; Deaton v. Com., 157 Ky. 312, 163
S. W. 204; Childers v. Com., 161 Ky. 440,
171 S. W. 149; Harris v. Com., 163 Ky. 781,
174 S. W. 476; Chaney v. Com., 149 Ky. 464,
149 S. W. 923; Miracle v. Com., 148 Ky. 453,
146 S. W. 1136; Hendrickson v. Com., 146
Ky. 742, 143 S. W. 433; Thurman v. Com.,
154 Ky. 555, 157 S. W. 919; Lawson v.
Com., 152 Ky. 113, 153 S. W. 56; Fra-
sure v. Com., 180 Ky. 274, 202 S. W. 653;

Daugherty v. Com., 157 Ky. 348, 163 S. W. 453; Leadingham v. Com., 182 Ky. 291, 206 S. W. 483. Previous to the act of March 23, 1910 (page 269), section 281 contained a provision which provided that a decision of the trial court, upon a motion for a new trial, was not the subject of an exception, and could not be reviewed by the Court of Ap peals, and so long as that provision remained in the section it was uniformly held by this court that a decision of the trial court, upon a motion for a new trial, was not ground of reversal nor subject of an exception, as will be observed from the following decisions: Brown v. Com., 49 S. W. 545, 20 Ky. Law Rep. 1552; Hunt v. Com., 12 S. W. 127, 11 Ky. Law Rep. 353; Vinegar v. Com., 104 Ky. 106, 46 S. W. 510, 20 Ky. Law Rep. 412; Com. v. Hourigan, 89 Ky. 308, 12 S. W. 550, 11 Ky. Law Rep. 509; Redmon v. Com., 82 Ky. 333.

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The reasonable and probable grounds that will justify an officer in arresting without a warrant need only be such as would actuate a reasonable man acting in good faith. sheriff, who saw in defendant's buggy tools, hose, and cans similar to those used by perwho had been informed that defendant and ansons in breaking into whisky warehouses, and other were contemplating such an offense, is warranted in arresting under Cr. Code Prac. § 36, subsec. 2, authorizing an officer to arrest without warrant when a public offense is committed in his presence or when he has reasonable grounds for believing that the person arrested has committed a felony.

2. Criminal law 395-Where arrest of defendant was lawful, evidence found may be used against him.

Where the act of the sheriff in arresting defendant without a warrant, on belief that he had committed a felony either by breaking into a bonded whisky warehouse or by having tools etc., found in defendant's possession are admisand appliances therefor, was warranted, tools, sible; there being no unlawful search and seizure.

3. Burglary 12-To warrant conviction of possession of burglar tools it need not be shown that they were made for burglaries.

While section 7 of the Constitution provides, "The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution," in a criminal or penal cause, the decisions of the trial court, as to the mode of selecting the jury and the qualifications of the individual jurors and their eligibility to jury service, are not subject to exception by a defendant, nor to review upon appeal by this court, nor are they grounds for reversal of the judgment. Such part of the procedure, relative to an ancient trial by jury, is concluded by the decision of the trial court in a pros-nouncing the offense of feloniously having posecution for a crime or misdemeanor. Section 248 of the Constitution provides that a jury shall be composed of "persons," and the statutes define the qualifications of such persons, and the question of whether or not persons presented for jury service have the statutory and constitutional qualifications rests in the decision of the trial court, and a decision upon that subject is precluded from exception by section 281, as before stated. As to the contention of the appellant that the judgment is void because, as contended by him, one of the members of the jury did not have the constitutional qualifications, suffice it to say that under section 281 and the decisions cited there is no way of the appellant presenting such question to this court upon appeal, and this court, as a matter of course, cannot determine that a decision, which it cannot review renders a judgment void.

If insisted that the question was one which the record does not show to have been raised, until the motion for a new trial was made, it is a decision, nevertheless, which cannot be excepted to nor reviewed by this court, whether raised at one period of the trial or another.

The judgment is therefore' affirmed.

In a prosecution under Ky. St. § 1159, desession of tools and implements and other things used by burglars with the intention of using the same burglariously, it is not necessary that the tools and appliances be manufactured and suitable only for burglarious enterof tools and appliances useful for breaking into prizes; consequently one who had possession a whisky warehouse under circumstances indicating an intention to use them for such purpose will be convicted, although the tools and appliances were susceptible of innocent uses. Appeal from Circuit Court, Circuit Court, Anderson County.

Clyde Riley was indicted for having felonious possession of burglar's tools in violation of Ky. St. § 1159, and having been acquitted on peremptory instructions, the Commonwealth appealed for certification of the law. Direction of acquittal held erroneous.

Chas. I. Dawson, Atty. Gen., W. T. Fowler, Asst. Atty. Gen., Chas. H. Morris, of Frankfort, Chas. H. Sanford, of New Castle, and L. W. McKee, of Lawrenceburg, for the Commonwealth.

Lillard Carter and F. R. Feland, both of Lawrenceburg, for appellee.

THOMAS, J. The appellee, Clyde Riley, was jointly indicted by the grand jury of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

and his summoned assistants, not only recognized the occupants of the buggy, but they saw therein some of the tools and a sack made of some kind of cloth which, as it turned out, contained other tools. The sheriff testified on this point that—

Anderson county with Virgil Miller, in which | warehouses in which was stored whisky, and indictment they were accused of "feloniously in the buggy, with the aid of lights from auhaving in their possession tools, implements tomobiles suddenly turned on, the sheriff and other things used by burglars for housebreaking and forcing doors and locks and places where goods, wares and money are kept with the intention of using said tools and other things burglariously," an offense denounced by section 1159 of the Kentucky Statutes. Upon his separate trial under that "They had all these paraphernalia here. indictment the appellee was, pursuant to a There was all of it in the bottom of the bugperemptory instruction of the court, acquit-gy, and they had the top back. You could see ted of the charge, and to obtain a certifica- them." tion of the questions of law involved the commonwealth prosecutes this appeal pursuant to the provisions of section 337 of the Criminal Code. Before the defendant was arraigned for trial Virgil Miller was tried under a separate indictment for another offense and was convicted and sent to the penitentiary, where he was confined at the time of the trial of the appellee under the indictment referred to.

As we understand the record, the principal questions involved, and the ones which influenced the court in directing an acquittal,

The articles found in the buggy, claimed by the commonwealth to be burglar's tools, were one brace, two bits, a funnel, a pinch bar about 12 or 2 feet long and 1/2 inch in diameter, about 20 feet of sectional hose, two five-gallon coal oil cans, one three-gallon jug, one gallon bottle, and two empty one-half gallon fruit jars. The defendants were also armed with weapons. After the light was turned on the buggy in which defendants were riding, they continued to travel the private road until they got to the pike, and then traveled it until they got to the gate leading to the home of the appellee, when the officers who were traveling immediately behind them made the arrest complained of. The sheriff testified that just before or about the time the parties arrived at the gate through which they started to go to the appellee's home, he turned his machine beside the buggy, when he heard Miller say: "Ri

(1) That the sheriff who arrested the defendants under the indictment, but before it was returned, not having a warrant to do so, was without authority to make the arrest, because of which (2) the alleged burglarious tools and other articles found in the possession of appellee and his codefendant, Miller, were incompetent as evidence against him under the principles laid down by this court in the recent case of Youman v. Com-ley, he has got us! By God, he has got monwealth, 189 Ky. 152, 224 S. W. 860, and by the Supreme Court of the United States in the still more recent case of Gouled v. United States, 255 U. S., 41 Sup. Ct. 261, 65 L. Ed. 311; and a possible ground (3) was that the tools found in the possession of the defendants in the indictment by the officers when they were arrested were not such as could, within the contemplation of the statute, be characterized as "burglar's tools." We will dispose of these grounds, as briefly as possible, in the order named.

[1] 1. Subsection 2 of section 36 of the Criminal Code authorizes a peace officer to make an arrest without a warrant "when a public offense is committed in his presence, or when he has reasonable grounds for believing that the person arrested has committed a felony." There being no warrant in this case, and no felony committed in the presence of the officer, the subject-matter of inquiry is narrowed to the question whether the officer at the time he arrested the defendants in the indictment had reasonable grounds to believe that they had committed a felony. The arrest was made between 12 and 1 o'clock at night. The defendants were first seen together in a buggy on a private road leading from the turnpike to the Bond & Lillard distillery and warehouses adjacent. They were coming from the direction of the

us!" and appellee replied, "Keep quiet." The sheriff, while on the stand, testified, in answering a question as to whether he had a search warrant, that "there was nothing to search; it was all in plain view," meaning the tools in the buggy. He was asked, "When you arrested them you looked into their buggy?" and he answered:

"Yes, sir; they told me they had nothing, then they invited me to look to show me they had no whisky in their buggy."

After the arrest the defendants were carried before the county judge, who issued a warrant for their apprehension, and later the indictment under which appellee was tried was returned. At and for some time prior to the arrest of the defendants in the indictment, W. A. Husbands was one of the night guards or watchmen at the Bond & Lillard warehouses. Late in the afternoon of the same day Miller had a conversation with Husbands in a pool room in Lawrenceburg, in which he suggested to Husbands that he (Miller) and "his buddy" would come to the warehouse that night to procure whisky if opportunities could be made favorable, and Miller testified that Husbands agreed to roll a barrel of whisky near to a hole through the door, or side, or perhaps the floor of the warehouse, from which he

and "his buddy" were expected to extract the [resenting the facts, the information furnishwhisky. A citizen of the town by the name ed by him and which possessed the earmarks

of Walter Gritten overheard that conversation and reported the facts to the sheriff. The same witness also saw Miller late at night going in the direction of the home of the appellee, as well as in the direction of the warehouse, and that fact was also reported to the sheriff. A considerable number of burglaries had recently been committed by breaking into whisky warehouses in and around Lawrenceburg, and the obtention of the whisky for which the burglaries were committed was made by boring holes in barrels and inserting therein some kind of tube or hose through which the whisky would be conveyed into receptacles provided by the burglar for the purpose of carrying it away. The sheriff knew all these facts and the further fact that vessels, such as were found in defendant's buggy at the time he was arrested, were used for that purpose.

The question, therefore, is whether the sheriff under these facts, all of which he knew before he arrested appellee, had reasonable grounds to believe that the occupants of the buggy had committed a felony, either (a) by having actually broken into a warehouse and obtained whisky, which possibly was in some of the vessels which they had .with them, or (b) by having in their possession the character of tools with which similar burglaries had been committed, and that if they had not actually committed burglary that they intended to do so.

What constitutes reasonable grounds justifying an arrest without a warrant is thus very aptly stated in 5 Corpus Juris, 417:

"The reasonable and probable grounds that will justify an officer in arresting without a warrant one whom he suspects of felony must be such as would actuate a reasonable man acting in good faith. The rule is substantially the same as that in regard to probable cause in actions for malicious prosecution, and there is no difference in its application between arrests for felonies and arrests for misdemeanors. The necessary elements of the grounds of suspicion are that the officer acts upon a belief in the person's guilt, based either upon facts or circumstances within the officer's own knowledge, or upon information imparted to him by reliable and credible third persons, provided there are no circumstances known to the officer sufficient to materially impeach the information

received."

of truth was sufficient to constitute reasonable grounds to authorize the officer to make the arrest without a warrant. And that ruling, as will be seen, is not only supported by the text from Corpus Juris and R. C. L., supra, but is likewise adopted by a great number of the courts in this country, as will be seen from the notes thereto. Without taking the time to analyze or apply the facts which were in the possession of the sheriff at the time he made the arrest, in this case, we unhesitatingly say that at the time he had reasonable grounds to believe, either that a burglary had been committed by the appellee and his companion in the buggy, or that they expected to commit one with the tools they had in their possession; in either of which events he was authorized to make the arrest, although, according to the case supra, no felony in fact had been committed.

[2] 2. From the foregoing it results that neither the principles announced in the Youman Case nor in the Gouled Case apply, since the essence of those opinions is that the search resulting in the development of the contested evidence must be either a forcible one involving some coercion on the part of the officer, or it must be made after admission gained to the searched premises through stealth and deception so that the search would be against the will or consent of the defendant. Such was the holding in the Gouled Case, and we so interpreted the Youman Case in the later ones of Banks v. Commonwealth, 190 Ky. 330, 227 S. W. 455, and Turner v. Commonwealth, 191 Ky. 825, 231 S. W. 519. All the books and all the cases agree, including the Youman Case, that evidence found by searching the defendant when he is lawfully arrested may be used against him and that such evidence does not come within the constitutional inhibitions against "unlawful search and seizure" of either one's premises or his person. Additional authorities for this proposition to those above referred to are 5 Corpus Juris, 434; Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Armstrong v. Commonwealth, 190 Ky. 219, 227 S. W. 162; and Wallace v. Commonwealth, 187 Ky. 775, 220. S. W. 1051.

[3] 3. Disposing of the possible ground (3) The same rule is set forth in 11 R. C. L. as one influencing the court in sustaining 801, and it was adopted by this court in the appellee's motion for a peremptory instruccomparatively recent case of Grau v. Forge, tion for the jury to acquit him, we have only 183 Ky. 521, 209 S. W. 369, 3 A. L. R. 642. to say that the tools or implements and other In the Grau Case the officer had been told things in the possession of the defendant, by an apparently intelligent boy that the in this character of prosecution, need not be person arrested had attempted to rob him, articles especially manufactured and designand he pointed out the would-be robber to the ed for the use of burglars alone, but they officer who made the arrest, without a war- may be any tools, implements, or things rant. We held in that case that, there being which in the language of the statute are nothing to indicate that the sheriff's inform- | "used by burglars for housebreaking, forcing ant was either mistaken or willfully misrep- doors, windows, locks, or buildings," etc., al

(232 S.W.)

possession, and which other articles were suitable and adapted to the harvesting of the fruits of a burglary or a particular kind of burglary. Just as in this case the empty cans, bottles, and jugs found in the possession of the appellee by the officer who arrested him might not in any sense be considered as burglar's tools, but they are articles and implements suitable for the full purpose of, and ordinarily used by, those who commit burglary upon a whisky warehouse.

though they may be such as are adapted for shown by other articles which he had in his use in the accomplishment of lawful and legitimate purposes. If the language of the statute should be construed so as to require that such tools, etc., should be specially manufactured and designed for burglarious purposes, we doubt if any defendant could ever be convicted under the statute, not only because, as we surmise, that there is no such manufacturing establishment, but also because of the great difficulty which the commonwealth would encounter in proving that fact, to say nothing about the strained construction of the statute which that interpretation would require. If the tools are such that they may be used to commit burglary, and the circumstances be such as to lead a reasonably prudent man to believe beyond doubt that the intention of their possessor was to use them for that purpose, the offense is complete. We feel that this interpretation of the statute is so plain as to need no fortification of authorities. But all the courts before which the question has been presented, so far as we are able to learn, have adopted the same view, as will be seen from an extended note to the case of State of Wisconsin v. Boliski, 50 L. R. A. (N. S.) 825. In that note it is stated that

"It is not necessary to prove that all the implements mentioned in an indictment be adapted to effect the objects charged."

And that

"If they are suitable for the purpose, so that they can be used to break and enter burglariously, it is wholly immaterial that they were also designed and adapted for honest and A chisel or centerbit, though a tool in common use for ordinary purposes, is quite as efficacious in the hands of a burglar to carry out his felonious intent, as a jimmy or a lockpicker, which is made for the sole purpose of being used to break and enter buildings."

Further along in the note it is shown that none of the tools found in the possession of the defendant need be adapted to the commission of the offense of burglary only, and that where the defendant had in his possession a hammer, a cold-chisel, and a file, and there was further evidence to prove an intent on his part to use such tools burglariously, a conviction would be authorized. The same note contains cases holding that the purpose of defendant in having in his possession ordinarily useful tools may be

That the intention of appellee and his codefendant was to so use those articles and the tools found in their possession there can be but little doubt in our minds from the testimony of appellee's codefendant, Miller, which is corroborated by other testimony in the case, but which we deem unnecessary to point out. As was to be expected, he was a most reluctant witness for the commonwealth and on every hand tried to shield the appellee by the suppression of any guilty fact against him, and it was only after a most rigid examination that he was made to tell about the future plans of himself and the appellee with reference to entering the warehouse with the tools which he claimed to have found the evening before in a clump of bushes near by it. He also tried hard to conceal the fact of appellee's knowledge of the arrangement with the watchman Husbands, and in parts of his testimony he made the unbelievable statement that appellee's act in accompanying him that night was no more culpable than to see if whisky was contained in the oil cans and other receptacles alleged to have been hidden in the bushes. such circumstances, one wonders why appellee consented to carry those tools and implements, which were shown not to belong to him, from the place where they were alleged to have been found to his home. The jury had the right to consider the extraordinary and unnatural features of the witness' testimony and his evident purpose to conceal, as much so as they had the right to consider his express statements affecting the guilt of appellee. But whether or not there was evidence sufficient to convince the jury beyond a reasonable doubt of appellee's guilt, there was certainly sufficient evidence to authorize a submission of the case to it under proper instructions, and the court erred in directing an acquittal of the defendant.

Under

Wherefore this opinion is certified as the law of the case.

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