200 Ky. 399 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
Tlie appellant was convicted of unlawfully transporting intoxicating liquor. TIis only complaint is to the alleged insufficiency of an affidavit and search warrant introduced as evidence.
It appears that, acting under the authority of a warrant, the officers searched his auto and discovered therein fifteen gallons of moonshine liquor, this being detailed in the evidence before the jury.
The affidavit reads as follows:
“The affiant, Chas. Gr. Franklin, states that Otto Wilkerson and a negro named ‘Buster’ have been bringing liquor into Madisonville and delivering the same in an automobile for several months past. He says that these two parties make about two trips each week from Henderson county to Madisonville, arriving in the nighttime and visiting during the night a number of houses commonly known as bootUgging joints; that on these occasions they deliver a package that affiant believes is liquor; that immediately after their departure liquor has been found in the houses into which the packages were carried. He says that he was informed a few minutes ago that the two parties were on their way from Henderson county to Madisonville with a roadster automobile loaded with*401 liquor; that his informant was a man named Williams, but he does not know his given name; that his informant claimed to have seen the men en route and to have seen a large jug in the car, which he believes contains liquor; the name of the car and the license number is unknown to affiant but he believes the car is either a Buick or an Oakland. He says that he has affidavits in his possession showing that said parties have been delivering liquor to Grant Raglan, Harvey Nisbet, Emma Norris, Coy Creekmur and many other citiezns of Madisonville and Earlington.
“(Signed) Chas. G. Franklin,
“Subscribed and sworn to before me by Chas. G. Franklin this the 12 day of Dec., 1922.
“T. T. Barton,
‘£ Clerk Hopkins Quarterly Court. ’ ’
The warrant reads as follows:
“To the Commonwealth oe Kentucky:
“To any sheriff or any constable or marshal of Hopkins county,
£ £ Greeting:
“It appearing from the affidavit of two reputable citizens of Hopkins county filed before me that there are reasons to suspect and believe that intoxicating liquors are stored and being sold and disposed of in violation of law on the following named premises in Hopkins county, Ky., to-wit: One roadster automobile, make and license number unknown, but believed to be Buick or Oakland and operated by Otto Wilkerson and a negro called 'Buster.’
“You are therefore commanded to make search of said premises by night or by day for-the detection of any intoxicating liquors which are kept there for the purpose of sale or other disposition in violation of law, and if admission be not given on demand made, you shall force an entrance into such house, building or other place and seize any intoxicating liquors, and arrest the keeper, or person in charge, of such house, building, other place, or intoxicating liquors, and carry such person or persons before the undersigned, or some other justice of the peace of Hopkins county to be dealt with according to law.
£ £ Given under my hand this the 12 day of Dec., 1922.
“G. O. Givens, Judge Hopkins County Court.”
It is urged that the search warrant was indefinite in that it did not indicate the kind of auto or its location.
Section 10 of the Constitution provides:
“No warrant shall issue to search any place or seize any person or thing without describing them as nearly as may be ... ”
This provision of the Constitution does not require absolute accuracy, but a description that reasonably identifies the article or place to be searched is sufficient. One could not describe the location of an automobile while the same was in transit. The make of the automobile under the circumstances could not be given, but it was described as being a Buick or an 'Oakland roadster, and operated by Otto Wilkerson and a negro called “Bus-tor.” It is thus seen that the auto and its location are identified by the presence of its owner, together with its,, description, and this distinguishes the present case from that of Taylor v. Commonwealth, 198 Ky. 728, which applied to real estate. The latter could be searched in the absence of the owner and a description of its location Avas necessary. We think this sufficiently identified the car to authorize a search.
Perceiving no error the judgment is affirmed.