56 S.W.2d 702 | Ky. Ct. App. | 1933
Reversing.
Elon VanHook appeals from a judgment convicting him of a second violation of the Prohibition Law, and fixing his punishment at three years' confinement in the state reformatory.
All the evidence was obtained by a search of appellant's premises under a search warrant based on the following affidavit:
"State of Kentucky, County of Harrison
"Affidavit
"The affiant, Leslie Miller being duly sworn, states that he is reliable informed and verily believes that Elam VanHook has concealed in his house or on or about his premises in Cynthiana, Harrison County, Ky., intoxicating liquor.
"Affiant states that said house and premises are located as follows:
"Being a one story frame house, located on the North side of the West Pearl Street, which runs from Main Street to S. Licking River. Said house being 3rd house East on Pearl Street from Poplar Street intersection on the North side of Pearl St. in Cynthiana, Harrison County, Kentucky.
"Affiant further states that information upon which he relies is as follows:
"That on the _____ day of April, 1931, this affiant had a colored man with him in his machine *83 they hath went to Elam VanHook house as above described. The colored man did not go to the said Elam VanHook upon two separate occasions to secure a price for said liquor, and the said VanHook told this affiant that the colored man would go with this affiant to get the said liquor, and that this affiant did go to the said house of Elam VanHook and received a can container with intoxicating liquor for which he paid the sum of four dollars.
"Affiant further states that Elam VanHook has the reputation of being a violator of the prohibition law.
"Wherefore affiant says that a search warrant be issued to thoroughly search said house and premises together with all outbuildings for intoxicating liquor.
"Leslie Miller.
"Subscribed and sworn to before me this 2nd day of May, 1931, by L. Miller.
"W.W. VanDeren "N.P. Harrison County, Ky."
The admissibility of the evidence was properly challenged on the ground that the search was illegal. It is settled law that evidence obtained by an illegal search is inadmissible and that the search is illegal, if made under a search warrant based on an insufficient affidavit. Price v. Commonwealth,
The affidavit in question was made on May 2, 1931. While the facts relied on were alleged to have occurred "on the _____ day of April, 1931," we cannot go behind the affidavit. Its sufficiency must be measured by what appears on its face. Thornton v. Commonwealth, supra. The only date on the affidavit was "_____ day of April, 1931." The date not being fixed, the facts may have occurred at any time during the month of April. We therefore conclude that the single purchase of intoxicating liquor from appellant on a day which may have been 30 days before the affidavit was made, was not sufficient to create in the mind of the officer issuing the warrant probable cause to believe that appellant possessed *85 intoxicating liquor at the time the affidavit was made, and the search warrant was issued.
It follows that the evidence obtained by the search warrant should have been excluded, and there being no other evidence of appellant's guilt, his motion for a peremptory instruction should have been sustained.
Judgment reversed and cause remanded for a new trial consistent with this opinion.