282 S.W. 762 | Ky. Ct. App. | 1926
Reversing.
Appellant was convicted of the offense of unlawfully manufacturing intoxicating liquor, and his punishment fixed at a fine of $100.00 and 60 days' imprisonment in the county jail. *85
The principal ground urged for a reversal is that the evidence was obtained by a search made under a search warrant based on an affidavit made by appellant's wife. With certain exceptions not here material, neither the husband nor the wife can testify against the other. Subsection 1, section 606, Civil Code. The Commonwealth insists that the prohibition applies only to an actual trial, and does not include the making of an affidavit for the purpose of obtaining a search warrant. Our Constitution provides that "no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, or without probable cause supported by oath or affirmation." Constitution, section 10. The statute authorizes any judge or justice of the peace, upon the filing of proper affidavit, to issue a search warrant. Section 2554a-14, Kentucky Statutes, Supp. 1924. A judge or justice of the peace is without power to issue a search warrant upon his own knowledge. The affidavit of some other person is necessary. Morse v. Commonwealth,
Judgment reversed and cause remanded for a new trial consistent with this opinion.