Smith v. Commonwealth

276 S.W. 495 | Ky. Ct. App. | 1925

Affirming.

On this appeal from a conviction for the unlawful possession of intoxicating liquor it is urged as grounds for reversal (1) that the search warrant upon which the evidence was procured was invalid; (2) that the place searched was not the place described in the warrant; (3) that the evidence did not show that the liquor found was intoxicating.

(1) It is claimed that the warrant is indefinite, in that, the property to be searched cannot be located or identified by the description, which reads: "That one-story dwelling house, No. 707, and barber shop combined near a blacksmith shop in the city of Owensboro, Daviess county, Kentucky, and other places adjacent thereto and occupied by Paul Smith."

The affidavit upon which the warrant was based contained the same description, with the additional words, "Situated on Main street." However, the officer proceeds under the warrant alone and it is not aided by the affidavit; therefore, it is essential for the warrant to describe the property to be searched with sufficient accuracy to locate it with reasonable certainty. Taylor v. Commonwealth, 198 Ky. 728; 33 C. J. 682. Here the name of the street upon which the property is located is omitted; otherwise the property is described with precision and is referred to as being occupied by Paul Smith. In a large city such description might be inadequate, but in a city the size of Owensboro, where the officers are presumably acquainted with all the places of business and their occupants, and where it is altogether improbable that more than one man named Paul Smith would be occupying a one-story dwelling house and barber shop combined, near a blacksmith shop, and corresponding to number 707, such description is reasonably sufficient.

(2) The witness Kimmel testified that he was a prohibition officer and that he knew the place of business of Paul Smith and that he searched that place of business under the search warrant named, and found two twelve gallon jars full of home brew and in a state of fermentation, one twelve gallon jar in each room, eight or nine cold bottles of beer in a back room and about one hundred bottles just outside of the building in a coal house which was near the building. He destroyed all of the liquor except one bottle upon which he put a label for the purpose of identification reading: "The defendant, Paul Smith, 709 W. Main street, Owensboro, Ky., soft drink stand and barber shop. Date of arrest, Aug. 4, 1924, by officer W.C. Kimmel. Witnesses, W.C. Kimmel, H.B. Brown, Charlie Hays and Newt Troglen, Owensboro, Ky."

It is argued from this that the place raided was 709 and not 707, and, therefore, not the place described in the warrant. It appears, however, from the evidence that there was a residence connected with the barber shop. No doubt this was the No. 707 referred to in the warrant and that the entrance to the business house was No. 709, both of which would be on the same side of the street, consequently there is no material variance between the premises described in the warrant and those searched.

(3) W.C. Kimmel testified that he tasted and smelled the liquor found on the premises and that it was intoxicating. B.N. Troglen, the policeman who assisted in the search, testified that he examined the liquor and that from his experience it was intoxicating. Also several witnesses testified that defendant's reputation was that of an illicit dealer in intoxicating liquor. A bottle of the liquor was introduced in evidence and inspected by the jury. This was sufficient evidence of the character of the liquor to submit to the jury the question as to whether or not it was intoxicating.

Perceiving no error, the judgment is affirmed.