Appellant, Rome Alred, was convicted of carrying concealed a deadly weapon, an offense denounced by KRS 435.230, and his punishment was fixed at two years' confinement in the penitentiary.
On August 11, 1953, appellant, his two companions, Jimmie Chasteen and Earl Smith, and his very young son, were returning from Leslie County toward his home in Harlan County on U. S. Highway 421. About the time they were crossing Pine Mountain, two state troopers, for reasons they deemed sufficient, began to follow the truck driven by appellant. When appellant reached his residence, he pulled off the road and got out of the truck. Trooper Kelly walked to the side of the cab, looked through the window and there saw two sacks, one of which had a hole in it about an inch and a half or two inches in diameter and through this aperture he saw that the sack contained moonshine whiskey. He informed appellant that he was under arrest. Thereupon Officer Babb began to search appellant who reached for his right front pocket. The officer caught his hand, held it, then reached in his pocket and pulled a pistol out of it. He testified that the pistol was completely concealed in appellant's pocket.
It has been established that when an arrest is legally made, the commonwealth may use the evidence obtained in making the arrest to convict the accused of an offense different from that for which he was arrested. Hatfield v. Commonwealth, 200 Ky. 264, 254 S.W. 914. It is also true that the evidence discovered by the search of a culprit's person or his belongings in the officer's immediate presence, after a legal arrest, is competent. Ingle v. Commonwealth, 204 Ky. 518, 264 S.W. 1088.
Here, appellant contends that the search by the officer which resulted in the discovery of the illegal whiskey was improper with no evidence to substantiate the arrest, and, therefore, since that arrest was invalid, the subsequent search of appellant's person for a concealed weapon was likewise invalid.
Whether or not the first search was legal turns, we think, upon whether the search was made on the highway or on the premises of appellant's residence.
The arresting officer, Babb, testified on direct examination:
"A. Yes, and we were coming across the mountain one day and came behind Mr. Alred in his truck. He pulled off the road up there, and we got out of the car. We pulled off behind him, got out of the car. Trooper Kelly walked around and looked in the cab and there was moonshine whiskey. He turned around and told Mr. Alred he was under arrest. I tried to search Mr. Alred. He tried to get his hand in his right front pocket. I caught his hand and held it and reached in his pocket and pulled this pistol out of his right front pocket.'
However, when he was particularly examined on this point, he testified:
"Q. Where abouts was his truck when you searched it? A. Pulled off the road alongside the highway.
"Q. Whose premises? A. I suppose it would belong to the highway department.
"Q. Was that his residence? A. Along near his residence.
"Q. In his driveway? A. It might have been his driveway, I didn't pay much attention. We pulled off.'
Officer Kelly in this connection testified only that on this occasion the officers pulled up behind the appellant's truck and got out of the car. He was not questioned by either party concerning ...