Buis v. Commonwealth

206 Ky. 57 | Ky. Ct. App. | 1924

Opinion of the Court by

Chief Justice Sampson

Affirming.

Appellant Buis complains of his conviction of the offense of having in possession spirituous liquors, on the ground that the affidavit upon which the search warrant was based, as well as the search warrant itself, were defective and insufficient, in consequence of which all evidence introduced by the Commonwealth was incompetent and should have been excluded from the consideration of the jury.

The affidavit was made by Henry Ellison and in substance states that the witness was at the home of Virgil Brown near Mt. Olivet, and saw Virgil Brown, John Brown, Howard Buis and Oscar Buis, making moonshine whiskey in a copper boiler on a cook stove in the kitchen of the Brown home in the fall of 1923, and he did not remember the exact date but some time nbout July. Later the same witness was at the home of Oscar Buis and saw him and others making moonshine whiskey with the same outfit; and further that appellant bore the general reputation of making and selling moonshine liquor. We can but believe that the facts set forth in the affidavit were all sufficient to create in the mind of a reasonable person probable cause for believing that there was at the time of the making of the affidavit in or near the home of appellant, Oscar Buis, a moonshine still and moonshine whiskey. If this be so, then the judge was fully justified in issuing the warrant on the affidavit. We are of the opinion that the affidavit was sufficient to create probable cause. The question is, were the premises to be searched sufficiently described in the warrant?

The warrant issued by the judge of the county court-describes the premises to be searched as follows: “Thé house now used and occupied by Oscar Buis as a residence and buildings and premises adjacent thereto. Said residence situated in Casey county, near Humphrey, Kentucky.” Casey county is a farming district and has but few-towns. The location of Humphrey, Kentucky, in that county, is well known. When the officer to whom the warrant was issued received it, he at once knew where the residence of Oscar Buis was located; or, if he did not know the exact building he had all the information needed in order to find the residence of Oscar Buis.

In the case of Blackburn v. Com., 202 Ky. 751, it was held that a description of the defendant’s premises in the search warrant as the place -where he lived, on the left-hand side of the road going up to Damrontown, was sufficient. See also Miller v. Com., 201 Ky. 423; Bates v. Com., 197 Ky. 692; Little v. Com., 205 Ky. 55. Hardly any better description could have been given than that which the warrant contains. The home of appellant Buis, of course, had no street number and was not in a village, but was near Humphrey. In a farming district like Casey county the sheriff, or other officer having the warrant, could have experienced no difficulty in locating the residence of appellant from the description given in the warrant. That was all that was necessary. The description was, as we believe, entirely sufficient, and the warrant was not invalid on that account.

These were the only grounds of complaint relied upon in appellant’s brief.

Finding no error to the prejudice of the substantial rights of appellant the judgment is affirmed.

Judgment affirmed.