196 Ky. 60 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
Jolm Dukes was convicted in tke Christian circuit court of tke offense of unlawfully having’ in Ms possession spirituous and intoxicating liquors for tke purpose of sale, and was sentenced to serve sixty days in the county jail .and to pay a fine of one hundred dollars. He is appealing, and insists that the judgment should be reversed (a) on the ground .of the admission of incompetent evidence procured under an illegal search warrant, and (b) because the verdict of the jury is not supported by the evidence.
On the first ground mentioned, the competency of the evidence is .attacked because, (1) the search warrant under which it was procured was not executed until seven days after it was issued; (2) the affidavit on which the warrant was issued was made by two police .officers of the city of Hopkinsville, and not by a state or Federal officer and one other reputable citizen or by two reputable citizens, as provided in the act of March 23, 1920; and (3) the affidavit is not sufficient on its face to show probable cause for the issuing of the warrant.-
It is an undeniable rule in tkis jurisdiction that evidence procured under an invalid search warrant, when objected to, can not be admitted to prove the guilt of one whose houses, papers or possessions have been unlawfully searched. But it is similarly true that the admissibility of the evidence must he drawn in question, and, unless objection is made to it at the time it is offered, it will be admitted and considered as competent.
Looking to the record to determine the merits of the question just suggested, we find that Ellis Roper, one of the officers who made the affidavit, testified to having searched the premises under the warrant. The warrant was then offered in evidence and counsel, for appellant “excepted” to the reading of it and moved to" quash it. The motion was overruled, and the warrant read, and thereupon the Commonwealth offered in evidence the affidavit on which it was issued, and counsel for appellant suggested that the affidavit be considered as read. The affidavit was read, and the Commonwealth then proceeded, with the examination of the witness and proved by him, without objection, that in making the search the officers found two jugs and a jar of white liquor, all of which was put in evidence, without objection. Counsel for appellant, in cross-examining the -witness, caused him to reiterate his former statements as to the circumstances of the search resulting in the discovery of the liquor. No objection was made to any of the testimony of this witness, nor to the jugs and jar of liquor that were introduced in evidence. It is true that appellant objected to the reading of the warrant, and moved to quash it, but at no time during the testimony of this witness did he object to the evidence as to what was found in making the search, or to the introduction of the whiskey itself. The court could not quash a search warrant already executed, even though it was invalid, and if appellant desired to avail himself of the incompetency of evidence procured under the warrant, he should have objected to the introduction of the evidence when offered, and it would then have been the duty of the court to examine the .warrant and the affidavit on which it was based, and determine whether the
W. D. Hawkins, another officer- who signed the affidavit, testified for the Commonwealth, but appellant objected to all of his testimony given by virtue of the search warrant. The objection was overruled, and the witness was permitted to state facts similar to those detailed by Roper. This testimony should not have been admitted, for it was clearly incompetent; but the testimony of the former witness, having been admitted without objection, was entitled to and did go to the jury as competent evidence. Hawkins’ testimony revealed nothing in addition to what was shown by Roper. Furthermore, W. C. Cobb, who was also in the searching party, subsequently testified to substantially the same facts as Roper, .and his testimony on direct examination was not objected to, although a motion was made, during the cross-examination, to strike it from the record. Appellant, when put on the witness stand, admitted practically all the facts disclosed in the testimony of Roper. It seems clear to us, therefore, that Hawkins’ testimony, though incompetent, was not prejudicial, since it cannot be said to have influenced the verdict in view of the facts mentioned, and especially in view of the evidence to the same effect previously admitted without objection.
ít is next insisted for appellant that the proof of the , Commonwealth is insufficient to sustain a judgment of conviction. In this connection, attention is called to the fact that the liquor was found at the home of appellant’s son, and it is said, that although appellant did not deny that it belonged to him, there is no fadt or circumstance shown that would reasonably induce the belief that he had it in his possession for the purpose of sale. Counsel emphasize the point that he had been a licensed distiller, and that he testified that the whiskey was made in 1916 at his registered distillery. The mere finding of liquor in one’s possession, under conditions such as disclosed here,
The judgment is affirmed.