201 Ky. 673 | Ky. Ct. App. | 1924
Opinion op the Court by
Reversing.
On August 6, 1923, Natlian Meredith, constable of Edmonson county, Kentucky, made an affidavit before R. E. Lindsey, a justice of the peace of said county, stating that he liad reasonable grounds to believe that appellant had intoxicating liquor in his residence, and upon this affidavit the justice of the peace issued a search warrant directed to the sheriff or any constable of Edmonson county, commanding them to search the dwelling house of appellant for intoxicating liquor. This warrant was placed in the hands of the constable for execution, and on the same day a warrant for the arrest of appellant was issued by the county judge of Edmonson county, charging him therein with the offense of unlawfully having intoxicating liquor in his possession. He was arrested and brought before the judge' for trial,
The record fails to contain a transcript of the evidence heard, but it appears that appellant was tried by the county judge and a jury. He was found guilty, receiving a fine of $100.00 and a sentence of 30 days in jail.
The record further discloses the fact that appellant appealed from this judgment to the Edmonson circuit court and the case was tried at the November term, resulting in his again being convicted and given the same punishment.
In the latter trial a jury was waived, and the case •submitted to the court on an agreed state of facts as evidence, and upon the motion for a new trial being overruled, an appeal is prosecuted.
It seems that acting under the search warrant issued by the justice of the peace the residence occupied by appellant and his family was searched, and in a closet a small quantity of moonshine whiskey was found in a fruit jar.
2. “Because the court erred to the prejudice of the substantial rights of the defendant in considering the testimony offered against him by the Commonwealth on: the trial of this case obtained by-means of an invalid search warrant, to all of which defendant objected and excepted at the time.”
The search warrant of which appellant complains and upon which the search of his home and the seizure of the whiskey was based is as follows:
“The affiant, Nathan Meredith, appearing before me; a justice of the peace of Edmonson county, Kentucky, states under oath that he has reasonable grounds to believe that T. L. Hyde has intoxicating liquor in his residence. The affiant further states that his reason for believing that T. L. Hyde has booze is from divers reports and he seen T. L. TIyd.e and Joe Johnson making trip to his house in an intoxicated condition. This August the 6, 1923.
“Nathan Meredith.
“Subscribed and sworn to before me, a justice of the peace, of Edmonson county, this August 6, 1923.
“B. E. Lindsey, J. P.”
It has been held by this court in numerous cases that the affidvait upon which a search warrant issues must contain a statement of facts sufficient to induce the belief in the mind of the officer issuing same that the law has been or is being violated.. It -cannot be vague, ambiguous and uncertain as to the evidence of the unlawful possession of intoxicating liquor by one against whom the warrant may be directed.
In Lakes v. Commonwealth, 200 Ky. 266, an affidavit for a search warrant stating that affiant had reasonable grounds to believe, etc., and that his reason for entertaining such a belief was general talk of the neighborhood, was held insufficient to direct the issuance of a search warrant.
In Adams v. Commonwealth, 197 Ky. 235, we find:
“A search warrant issued upon an insufficient affidavit, that is to say, an affidavit which does not*676 state facts sufficient to produce in the mind of the judicial officer probable cause for believing that the offense charged has been committed or is being committed, is no protection to the officer, and evidence obtained under it is inadmissible upon the trial of the defendant.”
In Carter v. Commonwealth, 197 Ky. 400, the court held:
“Under Constitution, section 10, forbidding search warrant ‘without probable cause, supported by oath or affirmation,’ an affidavit which merely states that the affiant ‘has information’ that J. H. C. has in his possession Jamacia ginger or other intoxicating beverages for the purpose of sale, is insufficient. ’ ’
In Mattingly v. Commonwealth, 197 Ky. 583, it was held:
“A search warrant can not be issued on an affidavit, or under oath or affirmation, which merely states the information and belief of the person sworn as to the existence of the ground necessary to be possessed by the officer who issues the warrant.”
The affidavit presented to the court in this case did not state or show the required facts, but merely that the affiant had reasonable grounds to believe that appellant had intoxicating liquor in his residence, and his reason for believing, he had booze was based upon divers reports; and further that he had seen appellant and Joe Johnson making trips to his house in an intoxicated condition. He does not give the names of those alleged to have been the source of the divers reports or upon what state of facts he relied in his belief that booze could be found on the premises, or whether the reports were such as to inspire the belief either in his mind or in that of the magistrate issuing the warrant. Again it is vague and entirely uncertain as to whose home he referred when saying that he had seen appellant and Joe Johnson making trips to his house in an intoxicated condition. If he meant that they had been going to the residence of appellant, he would certainly have no grounds for believing that it contained whiskey, as it would be far more reasonable to suppose they had obtained it elsewhere, and after becoming intoxicated directed their steps homeward; and if he
The officer issuing the search warrant must be guided alone by the facts set forth in the affidavit, and no warrant of this character should be issued upon mere pretense or flimsy, unreliable and indefinite information such as was furnished in this case.
Let the judgment he reversed.
