Barton v. Com.
| Decision Date | 22 January 1935 |
| Parties | BARTON v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Knott County.
Lula Barton was convicted of violating the prohibition law, and she appeals.
Reversed and remanded.
Napier & Eblen, of Hazard, for appellant.
Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.
Lula Barton has prayed an appeal from a judgment convicting her of violating the prohibition law and fixing her punishment at a fine of $100 and imprisonment for 30 days.
The facts are: Mrs. Barton operated a small grocery and restaurant at Sassafras, in Knott county. Claiming to act under a search warrant, deputy sheriffs of that county went to her place of business and searched the premises. They found several bottles containing slight quantities of whisky and one bottle containing about an inch of whisky. They also claimed that something which Mrs. Barton threw from a dish pan had the odor of moonshine whisky. There was further evidence that her place of business had the reputation of being a place where intoxicating liquors were sold.
The accused objected to all the evidence obtained by the search and the refusal to exclude is the principal ground urged for a reversal. It developed on the trial that the affidavit and search warrant had been lost, and the county judge was permitted to testify that the affidavit was signed and sworn to by Herbert Bolen, and was substantially as follows "The affiant, Herbert Bolen, states that he has reasonable grounds to believe and does believe that there are intoxicating liquors kept illegally for the purpose of sale by Mr. and Mrs. Ed Barton in the brick building or outbuildings occupied by them at Sassafras, Knott County, Kentucky; that he bases said belief upon the following facts; that he has been told by reliable persons that they are selling liquor at said place; that he saw persons go into said place and come out and have liquor when they come out and drink the said liquor."
Herbert Bolen, who made the affidavit, as well as the search, testified that the search warrant was
Evidence obtained by an illegal search is inadmissible and a search is illegal if made under a search...
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