Commonwealth v. Dincler
| Decision Date | 23 November 1923 |
| Parties | COMMONWEALTH v. DINCLER. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Fayette County.
B. S Dincler was indicted for keeping intoxicating liquors for the purpose of sale and was found not guilty by a directed verdict, and the Commonwealth appeals for a certification of the law. Law certified.
Thos B. McGregor, Atty. Gen., and Edw. L. Allen, Asst. Atty. Gen for the Commonwealth.
King Swope, of Lexington, for appellee.
Appellant Dincler was indicted in the Fayette circuit court for the offense of keeping intoxicating liquors for the purpose of sale, but when put upon trial was found not guilty by a directed verdict. The commonwealth appeals for a certification of the law. Appellee Dincler operated a grocery store, restaurant, and soft drink stand at the northest corner of Mechanic and Upper streets in the city of Lexington. He was thought to be trafficking in intoxicating liquors. A search warrant for the premises was sought. The following affidavit was made by one Collins to obtain it:
"United States of America.
Affidavit for Search Warrant.
Eastern District of Kentucky, at Frankfort.
Be it remembered, that on this day, before me, the undersigned, a United States commissioner, for the Eastern district of Kentucky, at Frankfort, came Jno. D. W. Collins, a federal prohibition agent, who, being by me duly sworn, deposes and says that the laws of the United States, namely, the National Prohibition Act, section 3 and title 2, Revised Statutes, are being violated by reason of the facts, to wit: He has bought intoxicating liquor at grocery Mechanic and Upper streets, N.E. corner, being the premises of J. W. Ballard, alias B. F. Dincler, and being situated in the city of Lexington and state of Kentucky and within the district above named.
John D. W. Collins."
It will be observed that the affidavit does not show when the liquors were sold or possessed at the place of Dincler, but merely that the witness had purchased intoxicants at that place. The evidence shows that his place had once been a saloon when it was lawful to sell liquor; that the fixtures were still there. So far as the affidavit shows, the sale of liquor to which the affidavit refers was made in that house at a time when it was lawful to sell liquor, or at least more than one year next before the finding of the indictment. Being defective in this respect, the affidavit was not sufficient to support the search warrant, and the search warrant issued thereon was invalid. The trial court so ruled, but allowed the attorney for the commonwealth to...
To continue reading
Request your trial
-
Henson v. Com.
...applies in Kentucky if the affidavit shows on its face that it is based on information or belief. See, for example, Com. v. Dincler, 1923, 201 Ky. 129, 255 S.W. 1042; Abraham v. Com., 1924, 202 Ky. 491, 260 S.W. 18; Vanhook v. Com., 1933, 247 Ky. 81, 56 S.W.2d 702; Barton v. Com., 1935, 257......
-
Williams v. Com.
...based on information or belief is defective unless it discloses when the observation was made by the informant. See Com. v. Dincler, 1923, 201 Ky. 129, 255 S.W. 1042; Abraham v. Com., 1924, 202 Ky. 491, 260 S.W. 18; Van Hook v. Com., 1933, 247 Ky. 81, 56 S.W.2d 702; Barton v. Com., 1935, 25......
-
Abraham v. Commonwealth
... ... appears he may have smelled the odor to which he swore at any ... time in the distant past, even antedating the present ... prohibition laws, both national and state ... In the ... case of Commonwealth v. Dincler, 201 Ky. 129, 255 ... S.W. 1042, the affiant who made the affidavit for the search ... warrant stated, as a reason for his believing the presence of ... intoxicating liquor in defendant's possession or on his ... premises, that-- ... "He ... has bought intoxicating liquor at ... ...
-
Garza v. State
...226 Mich. 600, 198 N. W. 203. The point is also illustrated by the Court of Appeals of Kentucky, in the case of Commonwealth v. Dincler, 201 Ky. 129, 255 S. W. 1042, from which we quote the affidavit for the search warrant and the comment of the court thereon as "`United States of America. ......