199 Ky. 655 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
Appellant, Alvey, assisted by Joe Harper, ran a soft drink stand and restaurant in Owensboro in 1922. Tbe
“The affiant says that his reasons for believing that intoxicating liquors are unlawfully kept for sale on said premises by the said Chas. F. Alvey are: that he has been in and on said premises and has seen said Chas. F. Alvey in possession of intoxicating liquors on said premises and has seen him make sales of said intoxicating liquors within the last sixty days and that said sales were not made for sacramental, medicinal, mechanical or scientific purposes.”
Upon this affidavit the judge issued a search warrant for the place of business of Alvey, giving the street number and all necessary information. With this warrant the chief of police and several members of his force went to the Alvey restaurant and soft drink stand about 9:30 that morning. Appellant was absent but his clerk, Joe Harper, was conducting the place. The soft drink stand was operated in a room formerly used as a saloon. It had a bar and all fixtures usually connected with such an establishment. The officers found under the bar on the drain board a pitcher containing almost a quart of intoxicating liquors, with a glass. Near the pitcher was a jug containing almost five gallons of whiskey and an empty jug of about the same' size which smelled of whiskey. In the same place were a number of bottles. These articles were seized by the officers to be used as evidence. Appellant Alvey was convicted and his punishment fixed at a fine and jail sentence within the jurisdiction of this court.
He asks a reversal of the judgment (1) upon the ground that the warrant was not supported by a sufficient affidavit and therefore the evidence given by the officers as to what they found in his place should have been excluded upon his motion made for that purpose. His only serious contention is that he was absent from his place of business and did not know that there was any whiskey in the establishment and that the evidence was insufficient to sustain a conviction. He also says that the court should have instructed the jury upon the law of agency. There are other complaints which we will notice incidentally.
Appellant was accused of unlawfully having liquor in his possession, and it did not matter that he had a clerk in the store. The store was in appellant’s possession. The warrant accused Alvey of the offense, not the clerk. The evidence proved very convincingly that the place was under the direction of Alvey and that Alvey had a bad reputation for bootlegging. He had been in his place the day before and remained until a late hour on the night previous to his arrest. In his testimony he denied knowledge of the liquor but did not undertake to explain how it came to be in' his house under his bar, some of it so arranged as to be easily served to patrons. The evidence for the Commonwealth was abundant. It was not necessary under the facts in this case to instruct upon the law of agency. The facts proven tend to show that appellant was guilty of having liquor in his possession.
It is next insisted that the witness who made the affidavit upon which the search warrant was issued was not a “reputable citizen” within the meaning of section 14 of the Rash-Gullion act, 1922, and therefore the warrant should have been quashed. This same question was made in the case of Head v. Commonwealth, supra, where we held that the appellant may not go behind the warrant to discover whether the affidavit was .made by a “reputable citizen” if the affidavit on its face be regular and state facts sufficient to produce in the mind of the judge probable cause, within the meaning of the Constitution. See also Bowen v. Commonwealth, 199 Ky. 400.
The instructions presented the law of the case. No error to the prejudice of the substantial rights of appellant appearing, the judgment is affirmed.
Judgment affirmed.
