Blackburn v. Com.

• Citation: 202 Ky. 751,261 S.W. 277
• Parties: BLACKBURN v. COMMONWEALTH.
• Decision Date: 25 April 1924
• Court: Court of Appeals of Kentucky

261 S.W. 277

202 Ky. 751

BLACKBURN v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 25, 1924

Appeal from Circuit Court, Pike County.

Floyd Blackburn was convicted of unlawfully possessing intoxicating liquors, and appeals. Affirmed.

Daugherty & Barrett, of Pikeville, for appellant.

Frank Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty. Gen for the Commonwealth.

O'NEAL J.

The appellant, Floyd Blackburn, was convicted in the Pike circuit court on the charge of unlawfully possessing intoxicating liquors, and his punishment fixed at a fine of $300 and 60 days' confinement in the county jail. He prosecutes this appeal, alleging that the trial court erred in admitting incompetent evidence procured through an illegal search warrant issued upon an insufficient affidavit.

The evidence shows that on or about July 28, 1923, one J. C Bentley, a federal prohibition officer, Marvin Williamson, a justice of the peace of Pike county, Allen Smith, and several others, met near the home of appellant, and that then and there the following affidavit was signed and sworn to by Smith before Williamson, the justice of the peace:

"The affiant upon oath states that there is now in the possession of Floyd Blackburn, spirituous liquors, that same is being sold in violation of the prohibition law, and that the said Floyd Blackburn has the reputation of being a bootlegger, wherefore a search warrant is demanded. The said Floyd Blackburn lives at Damron Town on the left of the railroad going up Pond creek in Pike county, Kentucky.

Allen Smith."

Through oversight the jurat was neither dated nor signed, but Williamson, who swore the affiant, Smith, forthwith issued a search warrant based upon the foregoing affidavit, describing appellant's property and the premises to be searched and their location as set out in the affidavit. The original warrant was lost, but Williamson testified to its contents, and also produced a copy of the original, which, however, was not introduced in evidence, appellant's objection thereto having been sustained. Immediately after the issuance of the warrant Bentley and others acting thereunder entered upon a search of appellant's premises. While they were searching the house a boy ran out carrying a half-gallon jar containing a quantity of whisky. The appellant did not introduce any testimony so that the foregoing facts stand uncontradicted, and in our opinion they are amply sufficient to sustain the verdict of the jury. The court therefore did not err in overruling appellant's motion for a peremptory instruction if the warrant under which the search was made was legal. That it was not legal is the only contention seriously urged upon this appeal, and the grounds upon which its legality is questioned are in substance:

(1) The affidavit upon which the search warrant was issued was not signed or dated by the justice of the peace who administered the oath.

(2) The court erred in directing the affidavit to be signed seven months after the search.

(3) The affidavit is insufficient.

(4) All of the testimony relative to the search of appellant's premises was incompetent because the commonwealth failed to produce the search warrant, account for its absence, or prove its contents.

We will dispose of these complaints in the order above stated.

Appellant questions the legality of the affidavit on which the search warrant was issued because the justice of the peace who administered the oath failed to sign the jurat. That the affidavit was signed and sworn to by the affiant is undisputed. Did the mere failure of the officer to affix his signature to the certificate invalidate the affidavit? We think not. Section 544 of the Code describes an affidavit as follows:

"An affidavit is a written declaration, under oath, made without notice to the adverse party."

Nowhere in our statutes is there any prescribed form for affidavits or certificates of officers, and it has been almost universally held that the jurat is no part of an affidavit unless made so by statute. The rule is thus stated in 1 Ruling Case Law, p. 769:

"The jurat is simply a certificate evidencing the fact that the affidavit was properly made before a duly authorized officer. Although it has been said that strictly speaking it is no part of the affidavit, but simply evidence that it has been duly sworn to by the affiant, common prudence would dictate that a properly executed jurat be attached to every affidavit. Its omission, however, in the absence of a statute to the contrary, is not fatal to the validity of an affidavit so long as it appears either from the rest of the instrument or from the evidence aliunde that the affidavit was in fact duly sworn to before an authorized officer."

The same doctrine is thus laid down in 2 Corpus Juris, 359:

"It has been held in some cases that the jurat is essential to the validity of an affidavit, but the generally accepted doctrine seems to be that the jurat is not such a part of the affidavit proper that its omission will render the affidavit a nullity. According to the latter view it may

...