Goode v. Commonwealth

• Citation: 252 S.W. 105,199 Ky. 755
• Parties: GOODE v. COMMONWEALTH.
• Decision Date: 15 June 1923
• Court: Court of Appeals of Kentucky

252 S.W. 105

199 Ky. 755

GOODE v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 15, 1923

Appeal from Circuit Court, Barren County.

Charles Henry Goode was convicted of violating the prohibition law and he appeals. Affirmed.

J. R White, of Glasgow, for appellant.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen., for the Commonwealth.

MOORMAN J.

The ground alleged for a reversal of this judgment is the admission of testimony procured under a search warrant that is said to be illegal because of the affidavit on which it was issued.

The affidavit states:

"That there are reasonable grounds to believe, and he (affiant) does believe, that whisky is kept unlawfully on the premises, residence, and outbuildings and place occupied by Walter Gray and Chas. Henry Goode in the town of Glasgow, Ky."

It then definitely describes the premises, and says:

"This affiant states that he bases his opinion and belief upon the following facts, to wit: That H. Mansfield came to him not more than an hour ago from the time this affidavit is written, and told this affiant that he visited said premises as described above and that he (the person giving this information) the said H. Mansfield, says he saw whisky in bottles and fruit jars, jugs and kegs on a table in said house occupied by said Grady and Goode, and that he saw some about 8 o'clock a. m. on the day this affidavit was written."

On this affidavit W. E. Jones, judge of the police court of Glasgow, issued the search warrant in question. It is contended by appellant that the affidavit is insufficient in that it fails to show the "probable cause, supported by oath or affirmation," required by section 10 of our Constitution.

Probable cause, in cases of malicious prosecution, has been frequently defined by the courts as that which affords a reasonable ground of suspicion supported by circumstances sufficiently strong within themselves to warrant a cautious person in the belief that the person accused is guilty of the offense of which he is charged. And it has been held that while mere conjectures and suspicions will not warrant a prosecution, credible information received from others might well be enough to induce such action, although proof that the information came from an unreliable source would be important in showing that the information was such that a reasonable man would not act on it. 18 R. C. L. p. 36.

The weight of authority is that an affidavit for a search warrant is insufficient if made on information and belief, though the opposite conclusion has also been reached. 24 R. C. L. 708. This court has adopted the rule of more general application.

In Cooley and Crawford v. Commonwealth, 195 Ky. 706, 243 S.W. 913, it was held that an affidavit that stated "there is probable cause and reasonable grounds for believing that at the building and premises * * * intoxicating liquors are being sold," etc., was not sufficient. In so holding it was pointed out that the affidavit did not "state a fact or circumstance on which one might rely for probable cause or which would support a reasonable belief that the appellants were guilty of any public offense." And, elaborating the point, it was said:

"The statement of any facts or circumstances in an affidavit, which would be ordinarily calculated to induce in the mind of a reasonable person the belief that the accused is guilty of a public offense charged against him, will suffice to warrant the officer in issuing the search warrant because it affords probable cause."

In Price v. Commonwealth, 195 Ky. 711, 243 S.W. 927 decided the same day as the case just referred to, and involving a similar affidavit, it was said, "It has been uniformly held that the existence of probable cause is a question for the court, and cannot be delegated to the accuser." In that opinion the court referred to the fact that the affidavit merely asserted that the state's attorney was informed and...