203 Ky. 400 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
This is an appeal from a judgment convicting appellant of having in his possession an illicit still and other apparatus designed for the unlawful manufacture of intoxicating liquors, and fixing his punishment at a fine of $300.00 and confinement in the county jail for a period of ninety days.
A reversal is asked on the ground that all the evidence was obtained by an illegal search and was therefore inadmissible..
The facts are these: The search was made under a search warrant issued on an affidavit by J. "W. Crutcher,
“That his reason for believing that intoxicating liquors are being sold or manufactured or disposed of or illegally possessed in violation of the statute in such cases made and provided, are as follows:
“The affiant states that on July 20, 1923, he smelled the plain and unmistakable odors of intoxicating liquors coming from and out of said premises. Affiant further states that when he smelled said liquors and fumes he was on the public sidewall?; immediately in front of the above described premises and that he is positive and certain that said odors and fumes came from the above described premises. ”
The search warrant was issued immediately, and on the same day two other officers searched at 1425 Rufer avenue and found a hundred gallon still in operation and “the whiskey running out very hot.” They also found five gallons of whiskey, five hundred gallons of whiskey mash and eighty gallons of beer mash. After the officers who had made the search testified to the foregoing facts, the Commonwealth rested. Thereupon appellant introduced J. W. Crutcher, the officer who made the affidavit for the search warrant, who testified that he went on appellant’s premises and knocked at the door intending to represent himself as an insurance man if' any one answered, but that no one answered. While at the door and at a side window, he smelled cooking mash, but did not smell anything until after he went on the premises, which he did for the purpose of “trying to get a smell.”
In view of this evidence, it is insisted that the search was illegal. The argument is that Crutcher went on the premises for the purpose of obtaining evidence against appellant. To that end he was engaged in a search without a search warrant. That being true, the information thus obtained was not admissible against appellant and could not be made the foundation of a search warrant. It is the rule in this state that if the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused to show that the statements in the affidavit are
Judgment affirmed.
