| Ky. Ct. App. | Sep 26, 1924
Opinion op the Court by
Affirming.
Appellant was charged in a warrant with unlawful possession of intoxicating liquors. The evidence was secured under a search warrant issued on the affidavit of a police officer. The affidavit was subscribed and sworn to on the 28th of September, 1923, and .the search warrant issued on that date. However, the affidavit on its face in giving affiant’s reason for believing defendant guilty of such unlawful possession states that he on September 28th, 1925, detected unmistakable odors of intoxicating liquors, and the mash used in making the same, coming from the house occupied by defendant.'
On his trial before a magistrate defendant was found guilty, and likewise was found guilty on his appeal to the circuit court.
In the latter court the judgment of guilty was based upon the following verdict:
“We the jury find the defendant, John C. Baker, guilty as found in the warrant, and fix his punishment at $200.00 fine and 30 days in jail.’'’
The first ground for reversal is that the affidavit for the search warrant was insufficient and did not authorize the issual of the warrant because it recited in its face that affiant had detected odors at a time two years in. the future, which was a physicial impossibility, and therefore furnished no basis for the issual of the search warrant. But the affidavit on its face discloses that the recital as to the date was merely a mistake, for not only was it physically impossible for the affiant to have detected such odors at a time two years in the future, but the affidavit was signed and sworn to on the 23rd of September, 1923, and the search warrant itself shows it was issued on that same day. The mistake in the date was so obvious not only on the face of the affidavit itself, but from the whole transaction, that no intelligent person could have failed to detect it at a glance.
The only other complaint is that the form of the verdict in the circuit court was insufficient -to support the judgment. It is perfectly plain from a reading of the verdict that the word “found” therein was intended to be and should be read as ‘ ‘ charged, ’ ’ and the' language of the verdict as a whole cannot be misinterpreted. It is true the verdict does not name the offense of which defendant was found guilty, but this does not invalidate it when from .its language as a whole there is no doubt of the offense intended. The reference in the verdict to the warrant made it certain that the charge therein preferred was the one intended. Hunn v. Commonwealth, 143 Ky. 143" court="Ky. Ct. App." date_filed="1911-04-14" href="https://app.midpage.ai/document/hunn-v-commonwealth-7138628?utm_source=webapp" opinion_id="7138628">143 Ky. 143.
Not only so, the defendant by his failure to ask the court to send the jury back and have this error corrected, waived such a trivial defect. McClees v. Commonwealth, 187 Ky. 533" court="Ky. Ct. App." date_filed="1920-03-23" href="https://app.midpage.ai/document/mcclees-v-commonwealth-7145999?utm_source=webapp" opinion_id="7145999">187 Ky. 533.
Judgment affirmed.