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Shawhan v. Commonwealth of Kentucky

October 3, 1958

KITTY SHAWHAN, APPELLANT,
v.
COMMONWEALTH OF KENTUCKY, APPELLEE.



Bird

BIRD, Judge.

Newport police, under the authority of a search warrant, raided a house in which they found Kitty Shawhan having sexual intercourse with a young man. Present, and allegedly in charge of bedroom operations, was Charles Schweinefuss. Kitty Shawhan, Charles Schweinefuss and the young man were thereupon arrested and taken before the police court. The young man was charged with a breach of peace but the record does not disclose what became of the charge. Kitty Shawhan was charged with prostitution in violation of KRS 436.075(2) and Charles Schweinefuss was charged with setting up and operating a house of prostitution also in violation of KRS 436.075(2). Samson Eisner, the alleged owner of the property, was later arrested on a warrant charging him with violating every offense denounced by KRS 436.075(2). Kitty Shawhan, Charles Schweinefuss and Samson Eisner were tried and convicted in the police court and each appealed to the Campbell Circuit Court. In the Circuit Court, over the objection of each defendant and after motions by each for separate trials, an order was entered directing that the three of them be tried together. They were tried together and all were convicted. Kitty Shawhan's punishment was fixed at a fine of $200 and one year in jail. Charles Schweinefuss' punishment was fixed at a fine of $200 and six months in jail. Samson Eisner's punishment was fixed at a fine of $200 and one year in jail.

On this appeal Kitty Shawhan complains that the search was made, and her privacy invaded, under the authority of an illegal search warrant. She complains that both affidavit and warrant are insufficient in form and substance to meet established legal requirements, and that the evidence obtained by virtue of the search was therefore erroneously and prejudicially introduced against her. She also complains that the court erred in not directing a verdict for her because all of the testimony against her arose from the illegal search.

This Court has examined the affidavit and search warrant in the light of her complaint and the authorities offered in support of it, and the Court finds both affidavit and warrant in substantial compliance with the prevailing law of the Commonwealth. In so finding, the Court makes no new law, modifies none, overrules none and therefore writes none. It is sufficient that the trial court and the parties be advised in the event of another trial.

Her remaining ground for reversal presents a more serious problem. She complains that the trial court erred in overruling her motion for a separate trial and in ordering, over her objection, that she be tried jointly with Schweinefuss and Eisner. We hold that joint defendants and persons jointly charged in misdemeanor actions are not entitled to separate trials as a matter of right. Lanham v. Commonwealth, 250 Ky. 500, 63 S.W.2d 585; Merdith v. Commonwealth, 199 Ky. 544, 252 S.W. 894. The Commonwealth contends that this case should be governed by that rule. It is contended that all of the parties are charged with violating the same statute ...


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