Reversing.
Appellant has been convicted of possessing a moonshine still and appeals.
The witnesses for the Commonwealth, a deputy sheriff and constable, discovered hidden in timber and undergrowth some 300 yards from appellant's home parts of a distilling outfit. They were found on Jim Sego's farm and as close or closer to his residence than to that of appellant, who lived on Jim Gibson's farm. The officers then went to appellant's home, where it was ascertained that he was not there. They then announced to his wife their purpose to search the house. She demanded to know whether they had a search warrant. They replied: "No, but we can get one." She thereupon said: "Go ahead and search until you are satisfied." They found three pecks of rye meal and a bottle that had! had whiskey in it. That testimony was admitted over appellant's objection, and he insists it was incompetent and prejudicial. The witnesses also testified that rye meal is used in manufacturing whiskey.
It is insisted for appellant that his constitutional rights were not waived when his wife admitted the officers to his home under the facts above, and that as the search was made without a search warrant the evidence obtained thereunder was incompetent. That position is well taken. In Duncan v. Commonwealth, 198 Ky. 841, that question was fully discussed and determined in a case facts almost exactly similar to those herein. The rule there announced was based upon Amos v. United States, 255 U.S. 313. The presence of officers at the home of an accused and their declaration to his wife *Page 707 in his absence of their purpose to search is a situation implying such coercion as to render her consent to the search ineffectual as a waiver of her husband's constitutional rights.
In Roberts v. Commonwealth, 198 Ky. 838, it was held that though a defendant voluntarily offers himself as a witness to testify in his own behalf, it is incompetent to cross-examine him relative to incompetent evidence against him found pursuant to a search under an invalid search warrant. Here, as above determined, the evidence discovered pursuant to the unlawful search of appellant's home was improperly admitted in evidence against him. It follows that, as appellant insists, it was incompetent for the Commonwealth to cross-examine him relative to the rye meal discovered in his home by the search.
Under the facts detailed above, eliminating the evidence illegally obtained, it seems extremely difficult to hold the verdict of the jury to be sustained by the evidence. In addition to the facts noted some of the witnesses testified as to paths leading to and from the place where the distilling apparatus was found, but that testimony was exceedingly vague and indefinite and uncertain as evidence that the paths were made by persons traveling from appellant's home to the place where the distilling apparatus was hidden and where the moonshine still apparently had been operated. Our consideration of the entire record leaves us with the conclusion that the verdict of the jury can not but be held to be flagrantly against the evidence.
For the foregoing reasons, the judgment herein is reversed and this cause remanded for further proceedings not inconsistent herewith.