12 S.W.2d 280 | Ky. Ct. App. | 1928
Reversing.
J.W. Jones has prayed an appeal from a judgment convicting him of the illegal possession of intoxicating liquor, and fixing his punishment at a fine of $200 and 30 days' imprisonment.
The record discloses that J.W. Fouch, the sheriff of Rowan county, in company with the jailer, searched the premises of appellant and found therein a half gallon of moonshine whisky. The search was made under a search warrant issued on the following affidavit signed by Richmond Tussey: "The affiant, Richmond Tussey, whose post-office address is Morehead, State of Kentucky, states that he is a citizen of Rowan County, and that he has reasonable grounds to believe, and does believe that intoxicating liquors are being sold, manufactured, disposed of or illegally possessed in a house, building, or *158
premises, owned or controlled by Wess Jones, and described and located as follows: On the Waters of Brushy Fork, joining the farms of Bob Johnson." The affidavit merely states that the affiant has reasonable grounds to believe, and does believe, and so forth. It states no facts supporting affiant's belief, nor does it state facts sufficient to produce in the mind of the judge probable cause to believe that accused possessed intoxicating liquor, and, under numerous decisions of this court, was insufficient to justify the issuance of the search warrant. Keith v. Commonwealth,
The contention that appellant consented to the search is based on the sheriff's evidence that, after he informed appellant that he had a search warrant authorizing the search of his premises, and offered to read the warrant, appellant said, "Go ahead and search." It is true that this contention finds support in the case of Bruner v. Commonwealth,
Wherefore, the appeal is granted, and the judgment reversed, and cause remanded for a new trial consistent with this opinion. *159