204 Ky. 513 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
Appellant Vick was indicted, tried and convicted in the Payette circuit court charged with the offense of having in his possession intoxicating liquors, not for any of the permissible purposes contained in the statute. The evidence of his guilt was obtained by federal prohibition officers under a search warrant issued by a United States commissioner, and if the warrant and the affidavit upon which it was based measured up to the requirements announced in the opinion in the case of Walters v. Commonwealth, 199 Ky. 182, the evidence obtained by the search was competent and therefore admissible, otherwise' it was not. It was held in that case, as well as many other-recent ones from this court, that the “probable cause” for the issuing of a search warrant required by section 10 of our Constitution must be made to appear to the officer issuing it from the oath of the affiant applying therefor, and if that oath does not state facts sufficient to create “probable cause” the officer is unauthorized to issue the warrant. It has likewise been held that for an affiant to state his “information and belief” of the existence of the facts sought to be discovered by the warrant is insufficient and must be supported by the statement of facts sufficient to create probable cause to the officer called upon to issue the warrant. The only supporting fact in the affidavit in this case is that the affiant “has personally
In the case of Hyde v. Commonwealth, 201 Ky. 673, an affidavit of substantially the same tenor was involved and it was held to be insufficient. It will be observed that the affiant did not give the names of any of the intoxicated persons to whom he referred, or an unusual and suspicious number, nor did he state that they or any of them were unknown to him; nor did he pretend to say in what condition any of them were when they entered the searched premises, and for aught that appears they may have been intoxicated when they made such entry. In short, the substance of the whole case is that the single and isolated fact of an intoxicated person or persons, leaving premises is sufficient to create probable cause to establish that they procured the intoxicants in those premises and unlawfully from the 'owner or possessor thereof.
The opinion referred to holds to the contrary, and our attention has been called to none of a different pronouncement, and in the absence of any such we can see no alternative except to follow that opinion, which requires a reversal of the judgment, and it is so ordered.
