Abraham v. Commonwealth

• Decision Date: 21 March 1924
• Citation: 202 Ky. 491,260 S.W. 18
• Parties: ABRAHAM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

260 S.W. 18

202 Ky. 491

ABRAHAM v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 21, 1924

Appeal from Circuit Court, Jefferson County, Criminal Branch Criminal Division.

L. C Abraham was convicted of unlawful possession of intoxicating liquors, and appeals. Reversed, with directions to grant new trial.

G. A Schuler, of Louisville, for appellant.

Frank E. Daugherty, Atty. Gen., and Thomas B. McGregor and Lilburn Phelps, Asst. Attys. Gen., for the Commonwealth.

THOMAS J.

Appellant, L. C. Abraham, was arrested and tried in the police court of the city of Louisville upon a warrant issued from that court accusing him of the offense of unlawfully possessing intoxicating liquors. From a judgment convicting him he appealed to the circuit court, and on his trial therein he was again convicted, and to reverse the judgment it rendered he prosecutes this appeal.

The only evidence introduced by the commonwealth was that furnished by officers who searched the residence of appellant under the authority of a search warrant issued by the judge of the police court authorizing them to do so. They found some liquor in the basement of defendant's residence, and their testimony was amply sufficient to sustain the conviction; but appellant objected to its introduction because of the insufficiency of the affidavit upon which the search warrant was issued, and by reason thereof it is insisted that the search was invalid and the evidence discovered thereby was incompetent. It was held in the case of Price v. Commonwealth, 195 Ky. 711, 243 S.W. 927, and in a number of cases since then, that unless the affidavit stated facts sufficient to create in the mind of the officer issuing the search warrant probable cause to believe the existence of the facts therein attempted to be stated, he was without authority to issue the search warrant, and in the case of Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A. L. R. 1303, and numerous cases since then, it was held that evidence procured through the execution of an invalid search warrant was incompetent.

The commonwealth, on the trial of appellant in the circuit court introduced both the search warrant and the affidavit upon which it was based. The warrant fully complied with the law in every essential. and from that fact the presumption would arise that it was preceded by a proper affidavit, and the burden was on defendant to show the contrary. Terrell v. Commonwealth, 196 Ky. 288, 244 S.W. 703; Adams v. Commonwealth, 197 Ky. 235, 246 S.W. 788; Gray v. Commonwealth, 198 Ky. 610, 249 S.W. 769; and Hodges v. Commonwealth, 198 Ky. 652, 249 S.W. 774. The commonwealth having introduced both the search warrant and the affidavit, the latter could be considered, without the formality of its introduction by defendant, in order to discharge the burden resting upon him to overcome the apparent validity of the warrant on its face. Therefore the question presented must be determined as if the affidavit was introduced by defendant himself. It properly described the premises to be searched, and stated that the affiant "has good reason to believe and does believe that intoxicating liquors are being sold or manufactured or disposed of, or illegally possessed for other than sacramental, medicinal, scientific or mechanical purposes," etc., and gave as affiant's reason therefor that "he smelled the odors of intoxicating liquors and mash arising from and coming out of said premises." It is first insisted that information obtained by the affiant from his sense of smell is not sufficient to create...