Coleman v. Com.

• Decision Date: 22 March 1927
• Parties: COLEMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

292 S.W. 771

219 Ky. 139

COLEMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 22, 1927

Appeal from Circuit Court, Pike County.

Curtis Coleman was convicted of unlawfully manufacturing intoxicating liquors, and he appeals. Reversed and remanded for new trial.

J. C Cantrell, of Stone, and Frank Damron, of Pikeville, for appellant.

Frank E. Daugherty, Atty. Gen., O. A. Stump, Com. Atty., of Pikeville, and J. P. Cusick, of Frankfort, for the Commonwealth.

HOBSON C.

Appellant was indicted in the Pike circuit court for the offense of unlawfully manfacturing intoxicating liquors. On the trial of the case he was found guilty, and his punishment fixed at a fine of $300 and 60 days in jail. The evidence for appellant was obtained by means of a search warrant under which the officers entered a dugout about 100 yards from his house where they found a still and outfit, seven barrels of mash some middlings, etc. The search warrant was issued by John Maynard, the police judge of Phelps, a town of the sixth class. The place searched was ten miles from Phelps, and the first question is, Did the police judge of Phelps have jurisdiction to issue a search warrant for the searching of premises outside of the corporate limits of the town? Section 3710, Ky. Stats., which creates this police court, thus defines its jurisdiction in criminal cases:

"Said police court shall have jurisdiction concurrent with the justices' courts of all criminal cases and proceedings, but such jurisdiction shall be confined to cases occurring within the city, and said courts shall always be open for the trial of penal and criminal causes."

By section 13, subd. 4, and section 19 of the Criminal Code, police courts are given concurrent jurisdiction of prosecutions for misdemeanors committed in the town. Section 26 provides:

"A warrant of arrest may be issued by the following officers, who are called magistrates in this Code, viz.: Judges of the county courts, judges of city or police courts (mayors, chairmen of the trustees of towns), and justices of the peace; and may be executed by the following officers, who are called peace officers in this Code, viz.: Sheriffs, constables, coroners, jailers, marshals, and policemen."

Under this section it has been held that the marshal of a town of the sixth class may make an arrest anywhere in the county. But this is because by section 3629, Ky. St., he is given "the powers that are now, or may hereafter be, conferred upon the sheriffs by the laws of the state." This power is conferred on the marshal, because many offenses are committed in these towns by persons not living in the town, and, if the marshal could only arrest them in the town, the execution of the law upon the offender would, in many cases, be unduly delayed. Helm v. Com. (Ky.) 81 S.W. 270, 26 Ky. Law Rep. 165, and cases cited. But there is nothing in the statute giving the police court any jurisdiction of offenses committed outside of the town. The search warrant was also a warrant of arrest for the offender, and appellant was arrested under the warrant for having committed an offense ten miles away from the town. The court is constrained to hold that, the jurisdiction of the police court being confined to the limits of the town, the search warrant was issued without authority, and was void.

While section 2554d1, Kentucky Statutes, provides that any judge or justice of the peace may issue a search warrant, this does not mean that a justice of the peace in one county may issue a search warrant to search premises in another county; and the jurisdiction of the police judge being confined to the town limits, he has no more authority to issue a warrant to search premises outside of the town than a justice of the peace has as to a search of premises in another county. By section 41 of the Act of 1922 (Acts 1922, c. 33) the jurisdiction of police courts is confined to "offenses committed in their respected jurisdictions." The jurisdiction of a justice of the peace is "coextensive with the county," but that of the police judge is confined to "the limits" of the town. Constitution, §§ 142, 143.

The affidavit upon which the search warrant was issued states these facts as the basis of the belief of the affiant that appellant had violated the law:

"The affiant says that Shade Smith told him that Harve Smith's boys had been buying liquor from the said Curtis Coleman, and the affiant states that the said Curtis Coleman bears the name of a bootlegger."

It does not appear when Shade Smith told him this, or when it was that Harve Smith's boys bought liquor there. These statements furnish no ground for a belief that the law was violated at that time, unless it was shown that the liquor had been bought there so near the time as to warrant the inference...