Phillips v. CommonwealthPhillips v. Commonwealth
- Reporters:
- , ,
- Before:
- Rees
*85 Opinion op the Court by
Judge ReesReversing.
Thе appellant, Pearl Phillips, was convicted in the Pike cirсuit court of possessing intoxicating liquor, and prays an appeal.
Appellant insists that his motion for a peremptory instruсtion should have been sustained (1) because the justice of thе peace who issued the ¡search warrant failed to sign.it officially, it being signed thus, “J. M. Robinson,” and (2) because of delay in exeсuting the search warrant.
It appears that, when the search warrant was issued, J. M. Robinson was a justice of the peace of Pike county, and, as such, issued the warrant. As the justice of the peace was acting in his official capacity when thе warrant was issued, no substantial right of appellant was prejudiсed by the omission of words or letters after the name of the оfficer - issuing the warrant showing the capacity in which the officеr was acting. This precise question was decided in Johnson v. Commоnwealth, 215 Ky. 54, 284 S. W. 401. The search warrant was issued on December 12, 1926, and npon‘it appears the following indorsement:
“Executed by attеmpting to search Pearl Phillips and him throwing and breaking the whisky. This January 8, 1927. (Signed) M. T. Scalf,
“C. P. C.”
It is insisted by appellant that this indorsement shows that the seаrch warrant was executed on January 8, 1927, 27 days after it had been issued, and that it was therefore not executed within a reasоnable time. There is no merit in this contention, however, as the record discloses that on December 13, 1926, the warrant upon which appellant was tried was issued upon the oath of M. T. Scаlf, the officer who executed the search warrant, and uрon the information secured by him at the time the search was made. M. T. Scalf testified that the search was made prior to Dеcember 13,1926, and the record discloses that appellаnt executed bond on January 5, 1927, and was tried on January 8,1927. It is plain, therefore, that the search warrant was not executed on the date appearing on the return on the search wаrrant, but that January 8,1927, was the day when the return was made. The appellant also insists that the verdict was flagrantly against the evidenсe.
*86 The witness Scalf testified in part, as follows:
“I had a search warrant for him, and I went np to where he livеd. It was in the night time, and I got nnder the barn shed. It was raining, and he came ont and went in the end of the barn, and a man went down, and just in a minute he сame back out with a poke in, his hand, and I stepped out, аnd I said, ‘I have a search warrant for you,’ and also, said ‘Give mе what you have there in that poke;’ and he started to throw it; and I said, ‘Don’t throw that;’ and he threw it, and it went out on the creek bank, and it broke; and then he said, ‘What do you want to trap a man this way fоr?’ and I said, ‘ I am not; I just came up here to catch you, and I did.’ The jar broke; I heard the glass break.”
•He further testified that he detected the odor of whisky.
It was shown that appellant’s general reputation in the community in which he lived for engaging in the illegal traffic of whisky wais bad. The evidence was sufficient to sustаin the verdict of the jury.
It is finally insisted that the instructions are erroneоus because of the omission of the word “unlawful” from the instruction submitting the question of the possession of the intoxicating liquor. The omission of the word “unlawful” in the instruction was prejudicial error. Johnson v. Commonwealth, 216 Ky. 175, 287 S. W. 572; Lefler v. Commonwealth, 216 Ky. 176, 287 S. W. 569; Bell & Kelly v. Commonwealth, 219 Ky. 444, 293 S. W. 955.
For the reason indicated, the appeal is granted, and the judgment reversed, and the cause remanded for a new trial consistent with this opinion.