Craft v. Com.

• Decision Date: 09 February 1923
• Citation: 197 Ky. 612,247 S.W. 722
• Parties: CRAFT v. COMMONWEALTH (TWO CASES).
• Court: Kentucky Court of Appeals

247 S.W. 722

197 Ky. 612

CRAFT v. COMMONWEALTH (TWO CASES).

Court of Appeals of Kentucky.

February 9, 1923

Appeal from Circuit Court, Letcher County.

Marion Craft and Martin Craft were separately convicted of unlawfully possessing intoxicating liquor, and they appeal. Reversed and remanded.

R Monroe Fields, of Whitesburg, for appellants.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

CLARKE J.

In the early hours of April 9, 1922, and while it was yet dark officers searched the residence of the appellant Marion Craft, and found two jugs containing whisky, under the bed in a room occupied by him, and, in a room occupied by his unmarried son, Martin Craft, several fruit jars containing whisky were found in a press. Upon this evidence they were separately indicted and convicted of unlawfully having intoxicating liquors in their possession. Upon their separate appeals, as they did upon their trials, they challenge the competency of this evidence and its sufficiency to carry the cases to the jury or sustain the verdicts, upon the ground that the search warrant under which the search was made did not sufficiently describe the premises to be searched, and that the affidavit upon which it issued was insufficient for the purpose. As there was no evidence in either case except that obtained by the officers under the search warrant, the competency of all of the evidence for the commonwealth in each case depends upon the validity of the search warrant, and its validity depends upon the sufficiency of the affidavit upon which it was issued, even if the warrant sufficiently described the premises to be searched. Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A. L. R. 1303; Ash v. Commonwealth, 193 Ky. 452, 236 S.W. 1032; Colley & Crawford v. Commonwealth, 195 Ky. 706, 243 S.W. 913; Terrell v. Commonwealth, 196 Ky. 288, 244 S.W. 703.

Having concluded that the affidavit was insufficient to authorize the issuance of the search warrant, we need not consider any other question raised by either appeal, since for this reason alone the judgment in each case must be reversed. The affidavit is as follows:

"State of Kentucky, County of Letcher.

This day personally appeared before me, a police judge of above county and state, J. Henry Brown, who, being duly sworn, states that he believes Marion Craft, Ira Craft, Martin Craft, John P. Craft and Columbus Craft committed the offense of possessing and selling liquor, Letcher county, state of Kentucky, on or about the 8th day of April, 1922.

J. Henry Brown.

Subscribed and sworn to before me by J. Henry Brown this 8th day of April, 1922."

In discussing the sufficiency of an affidavit to support a search warrant in the case of Colley & Crawford v. Commonwealth, supra, we said:

"The

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