196 Ky. 626 | Ky. Ct. App. | 1922
Opinion op the Court by
Beversing.
Tbe appellant, "Walter Mabry, was tried in the court below under an indictment charging him with the offense of unlawfully having in his possession intoxicating liquors for sale for purposes other than medicinal, scientific, sacramental or mechanical. The trial resulted in the return of a verdict by. the jury finding him guilty of the offense charged, and fixing his punishment at ¿1 fine of $50.00 and confinement of thirty days in jail. The refusal of the circuit court to set aside the verdict and grant the appellant a hew trial led to the granting by it of the present appeal, and his prosecution of same.
The appellant urges as grounds for the reversal of the judgment error of the trial court: (1) In admitting, • over his objection, incompetent evidence; (2) in refusing, as requested by him when the Commonwealth. concluded its evidence, and, again, at the conclusion of all
The affidavit referred to is a joint one, subscribed and sworn to by J. H. Ware, chief of police, and one Eller Roper, which merely recites: “That there is probable cause and reasonable grounds for believing that .‘intoxicating liquors’ are being sold, or suspected of being sold or disposed of in violation of law, or kept for sale, or other disposition in violation of law,” in the building in Hopkinsville occupied by the appellant as a place of business.
It will be observed by a comparison , of them, that this affidavit is more indefinite and otherwise defective than the similar ones declared in Colly & Crawford v. Commonwealth, 195 Ky. 706, and Price v. Commonwealth, 195 Ky. 711, wholly insufficient, tested by the' provisions of section 10, Kentucky Constitution, and those of the Fourth Amendment to the Constitution of the United States, to authorize the issuance of a search
Furthermore, as in the cases, supra, and the previously decided case of Youman v. Commonwealth, 189 Ky. 152, it is declared evidence obtained by an illegal search and seizure is inadmissible, and that the question of its incompetency, and consequent inadmissibility, may be raised by objecting to its admission at the time the evidence is offered; and this having been the course pursued by the appellant on his trial .in the court below, we are constrained to hold that the action of the trial court in admitting, over his objection, the evidence in question, is reversible error.
The court’s refusal of the requested instruction directing the appellant’s acquittal of the offense charged by the verdict of the jury, was also reversible error; as without that obtained by the illegal search and seizure erroneously admitted by the court, there was no evidence whatever upon which to base the verdict returned by the jury.
For the reasons indicated, the judgment of the circuit court is reversed, and cause remanded for a new trial not inconsistent with the opinion.