Com. v. Thomas

• Decision Date: 28 September 1928
• Citation: 9 S.W.2d 719,225 Ky. 603
• Parties: COMMONWEALTH v. THOMAS.
• Court: Kentucky Court of Appeals

9 S.W.2d 719

225 Ky. 603

COMMONWEALTH v. THOMAS.

Court of Appeals of Kentucky

September 28, 1928

Appeal from Circuit Court, Hardin County.

Charles Cain Thomas was indicted for unlawfully possessing intoxicating liquor. From an order sustaining her motion for a peremptory instruction, the Commonwealth appeals, for the purpose of having the law certified. Law of the case certified.

J. W Cammack, Atty. Gen., and A. P. Cubbage, of Leitchfield, for the Commonwealth.

H. L James and H. L. James, Jr., both of Elizabethtown, for appellee.

REES J.

The appellee was indicted for unlawfully having in her possession intoxicating liquor. The trial court excluded all evidence obtained by reason of a search warrant issued by the police judge of the city of Elizabethtown, on the ground that the affidavit for the search warrant was insufficient. There being no other evidence tending to show the guilt of appellee, her motion for a peremptory instruction was sustained. The commonwealth has appealed, for the purpose of having the law certified.

The affidavit reads in part as follows:

"The affiants, Malcolm Searcy and Will Carver, say that Charles Cain Thomas has spirituous and intoxicating liquor in her dwelling house or on her premises, or some outhouse adjoining her dwelling house, in Elizabethtown, Hardin county, Kentucky, for the reason that they saw said liquor in jugs, and other receptacles in said house."

The trial court excluded all evidence as to the finding of any liquor upon appellee's premises, because the affidavit did not fix the time when the affiants saw the liquor. The trial court no doubt was influenced in making the ruling complained of by the commonwealth by the opinion in Abraham v. Commonwealth, 202 Ky. 491, 260 S.W. 18 in which the affidavit was held insufficient. But in that case the affiant expressed a mere belief that liquor was possessed, and gave as his reason for such belief that "he smelled the odors of intoxicating liquors and mash arising from and coming out of said premises," without fixing the time that he smelled such odors. In the instant case the affiants stated as a fact that "Charles Cain Thomas has spirituous and intoxicating liquor in her dwelling house." This fact was necessarily ascertained through one of the five senses, and the statement in the affidavit that affiants saw the liquor did not weaken or qualify the preceding statement of an existing fact.

In Blackburn v. Commonwealth, 202 Ky. 751, 261 S.W. 277, the affidavit read in part:

"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."

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