Gray v. Commonwealth
| Decision Date | 13 April 1923 |
| Citation | 198 Ky. 610,249 S.W. 769 |
| Parties | GRAY v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Trigg County.
Herbert Gray was convicted of unlawfully having in his possession spirituous liquors, and he appeals. Affirmed.
G. P Thomas, of Cadiz, for appellant.
Chas I. Dawson, Atty. Gen., T. B. McGregor, Asst. Atty. Gen., Jas H. Coleman, of Murray, and John T. King, of Cadiz, for the Commonwealth.
A warrant was issued upon affidavit against appellant charging him with unlawfully having in his possession spirituous liquors. Having been tried and convicted in the county or quarterly court, he appealed to the circuit court, and there again he was found guilty and now prosecutes this appeal.
He is a young man 23 or 24 years of age, and lives with his mother at Cadiz, in Trigg county. The mother was either the owner or in control of the household, and defendant occupied a room and made his home there with her. A short time before his arrest there was issued a search warrant which was placed in the hands of the sheriff, purporting to authorize him to search the premises of the mother. The officer and an assistant went to the home of Mrs. Gray in appellant's absence, and there by the consent and agreement of Mrs. Gray proceeded to search the premises. About the time they were finishing the search in appellant's room he arrived and questioned their right to search his room, but they completed the search under the assertion of a right to do so, and found therein a half pint bottle with a small quantity of white or moonshine whisky in it, and two larger jars, one of which was partially filled with water, and the other possibly having a very small quantity of liquid of some kind.
On the trial in the circuit court neither the search warrant nor the affidavit upon which it was based were introduced in evidence, and it is insisted for appellant that, as he objected to the introduction of this evidence, it was incompetent, because the commonwealth failed to introduce or account for the absence of the search warrant, as held in the case of Adams v. Commonwealth, 197 Ky. 235, 246 S.W 788. Except for the agreement of the housholder that the officers might make the search, the point would be well taken, but the evidence shows without contradiction that Mrs. Gray agreed that the officers might search her home, and it has been held by this court that, where there is such consent for a search, the officer may make the same, even though he has no warrant or an insufficient one. Banks v.
Commonwealth, 190 Ky. 330, 227 S.W. 455; Bruner v. Commonwealth, 192 Ky. 386, 233 S.W. 795.
Under the rule in Terrell v. Commonwealth, 196 Ky. 288, 244 S.W. 703, it was the duty of the defendant himself to introduce the affidavit upon which the search warrant was based if he relied upon its insufficiency; but, while this was not done on the trial, for the first time, in supplemental motion and grounds for a new trial he copied the affidavit and sought a new trial because of its insufficiency, although he did not in such grounds rely upon same as newly discovered evidence or account in any way for his failure to introduce the same upon the trial.
But, if appellant had introduced on the trial the affidavit, and both it and the...
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