Byrd v. Com.
| Decision Date | 09 October 1953 |
| Citation | 261 S.W.2d 437 |
| Parties | BYRD et al. v. COMMONWEALTH. |
| Court | United States State Supreme Court — District of Kentucky |
Joe S. Feather, Williamsburg, for appellants.
J. B. Buckman, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.
Appellants, Connie Byrd and Sam Wetmore, on a joint trial were convicted of illegally possessing intoxicating liquor in local option territory for the purpose of sale and the punishment of each was fixed at a fine of $50 and confinement in jail for 30 days. On their motion for an appeal they insist: (a) that the trial judge erred in not excluding the evidence obtained under a void search warrant which was not signed by the county judge; (b) had this incompetent evidence been excluded there was no evidence to sustain the conviction.
There is no contrariety in the testimony as to the failure of the county judge to sign the search warrant. It is admitted that the name of Everett Faulkner, the County Judge of Whitley County, was signed to the search warrant by Edward Grayson, the secretary or stenographer of Judge Faulkner, at the request and in the presence of the Judge. We have held in at least two cases, Miller v. Commonwealth, 201 Ky. 423, 257 S.W. 3; and Divine v. Commonwealth, 236 Ky. 579, 33 S.W.2d 627, that a search warrant purporting to be issued by a county judge must be signed by him, and is void where signed for him by some one else even in his presence and at his request.
The learned assistant attorney general who briefed the case for the Commonwealth argues strenuously that our rule is too rigorous and the Miller and Divine opinions should be modified to the extent that where the county judge's name is signed to a search warrant in his presence and at his direction to his clerk or secretary, same should be held to be signed by the county judge; or at least, that such signing makes the search warrant voidable and not void, citing State ex rel. Davis v. Police Jury of Webster Parish, 120 La. 163, 45 So. 47; Bryan v. Ker, 222 U.S. 107, 32 S.Ct. 26, 56 L.Ed. 114. Neither of these cases involved a search warrant. Nor is the domestic case of McKenna v. Nichols, 295 Ky. 778, 175 S.W.2d 121, in point; as it merely holds that a de facto clerk of the county court whose appointment was irregular may retain statutory fees received from litigants for services performed for them.
Section 10 of our Constitution and the Fourth Amendment to the Federal Constitution are practically the same in guaranteeing citizens to be free in their persons, houses, papers and...
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