Bentley v. Commonwealth
| Decision Date | 15 May 1931 |
| Citation | 239 Ky. 122,38 S.W.2d 963 |
| Parties | BENTLEY et al. v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Knott County.
Elcaney Bentley and another were convicted of unlawfully having in their possession an illicit moonshine still and parts thereof for the unlawful purpose of manufacturing intoxicating liquors, and they appeal.
Reversed with directions.
John W Caudill, of Prestonsburg, for appellants.
J. W Cammack, Atty. Gen., for the Commonwealth.
The appellants, Elcaney and Noah Bentley, together with one Hall were jointly indicted in the Knott circuit court and accused of unlawfully having in their possession an illicit moonshine still and parts thereof for the unlawful purpose of manufacturing intoxicating liquor. At their joint trial Hall was acquitted, but the appellants were convicted. Their motion for a new trial was overruled, and they have filed a transcript of the record in this court with a motion for an appeal from the verdict and judgment rendered thereon, and their counsel relies upon two alleged errors committed by the trial court, and which are, as he contends, sufficiently prejudicial to authorize a reversal of the judgment, and they are: (1) That the evidence of the commonwealth, which it contends was sufficient to authorize a conviction of appellants, was incompetent and should have been excluded, because obtained by a search warrant based upon a wholly insufficient affidavit; and (2) that the evidence, if competent, is insufficient to sustain the conviction.
The affidavit, the sufficiency of which is denied in error 1, was made by a deputy constable in Knott county, who with some other officers went to the home of Hall on the late afternoon of March 10, 1929, and proposed to search his premises. He inquired if they had a search warrant, and on being informed that they did not he declined to give his consent, whereupon one of the posse secretly guarded Hall's residence while another went for a search warrant; but he was late in obtaining it, and it was not attempted to be executed until the next morning. The questioned affidavit, after stating affiant's belief as to the unlawful possessions, says: "The affiant states that he based the aforesaid belief on information furnished him by Little John Madden, a reputable citizen of Knott County, Kentucky, who stated facts as follows: He told me that they are making liquor somewhere on Dave Hall's possessions and I went to try and find out and as soon as I entered into the house I smelled the mash."
In the cases of Abraham v. Commonwealth, 202 Ky. 491, 260 S.W. 18, 19; Griffith v. Commonwealth, 209 Ky. 143, 272 S.W. 403, and Coleman v. Commonwealth, 219 Ky. 139, 292 S.W. 771, 772, we had before us affidavits, in support of the issuance of search warrants, which contained statements to produce probable cause for the issuing of the warrant in all essential respects the same as the above excerpt from the affidavit in this case for the same purpose. In each of those cases we held that, regardless of the sufficiency of the substance of the statements, none of them fixed or stated any time when the alleged facts happened, and that, since it was necessary for that to be done in order to show whether such conditions were true and coexistent with the time of the issuing of the warrant, they furnished no authority to the issuing officer for believing that the facts attempted to be stated in the affidavit were then true and, consequently, no authority for him to issue the warrant, and which conclusion to our minds is inescapable.
The opinion in the Abraham Case referred to the prior one of Commonwealth v. Dincler, 201 Ky. 129, 255 S.W. 1042 wherein the affiant said that "He has bought intoxicating liquor at grocery Mechanic and Upper streets," etc., but he did not state when his purchase or purchases were made, and it was held that the affidavit was insufficient "because it did not fix the time of the purchase made by the affiant sufficiently near to the time of the issuing of the warrant to create probable belief that the same conditions existed, or that similar articles to those purchased were still on the premises or in the possession of defendan...
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