Henson v. Com.

• Decision Date: 23 June 1961
• Parties: Frank HENSON, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 546

347 S.W.2d 546

Frank HENSON, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 23, 1961.

John J. Tribell, Pineville, for appellant.

John B. Breckinridge, Atty. Gen., Wayne J. Carroll, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

The affidavit for the search warrant under which the incriminating evidence in this local option case was obtained stated that the defendant 'now has in possession,' unlawfully, at the premises therein described a quantity of alcoholic beverages, and 'that knowledge of these facts was gained in the following manner, to-wit: Observation, in person.' (Italics added.) Nowhere did it state when the personal observation took place. For this reason it is contended that the affidavit was insufficient to support the warrant.

It seems to be the general rule in other jurisdictions that in order to show 'probable cause' the affidavit for a search warrant must contain a particular statement as to the time when the observation occurred, even though made by the affiant himself. See annotation, 162 A.L.R. 1406-1418. 'If an affidavit is made on affiant's own knowledge, he must disclose in the affidavit the facts on which his knowledge is based.' 79 C.J.S. Searches and Seizures Sec. 74, p. 870.

The rule that the affidavit is defective unless it discloses the time at which the observation was made definitely 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 Ky. 419 78 S.W.2d 310; Duncan v. Com., 1944, 297 Ky. 217, 179 S.W.2d 899; and Webb v. Com., Ky.1960, 339 S.W.2d 177. And in Moore v. Com., 1947, 306 Ky. 22, 206 S.W.2d 69, the same rule was applied where the affidavit, though based on the affiant's own knowledge, recited her observations in the past tense without referring to the time. However, it is also held in this state that 'the statement of the ultimate fact, as a fact and not merely on information and belief, is sufficient to establish reasonable or probable cause.' 79 C.J.S. Searches and Seizures Sec. 74, p. 871. Though it seems to have originated (in Mattingly v. Com., 1923, 197 Ky. 583, 247 S.W. 938, 940) by way of dictum in which great positivity of assertion served in lieu of specific supporting authority, this rule has become solidly entrenched. See Mattingly v. Com., 1923, 197 Ky. 583, 247 S.W. 938, 940; Caudill v. Com., 1923, 198 Ky. 695, 249 S.W. 1005, 1006; Walters v. Com., 1923, 199 Ky. 182, 250 S.W. 839, 841; Bowen v. Com., 1923, 199 Ky. 400, 251 S.W. 625; Moore v. Com., 1923, 200 Ky. 419, 255 S.W. 77; Blackburn v. Com., 1924, 202 Ky. 751, 261 S.W. 277; Neal v. Com., 1924, 203 Ky. 353, 262 S.W. 287; Wells v. Com., 1927, 221 Ky. 796, 299 S.W. 975; Abshire v. Com., 1924, 204 Ky. 724, 265 S.W. 304; Munson v. Com., 1923, 201 Ky. 274, 256 S.W. 393; Blackburn v. Com., 1924, 202 Ky. 751, 261 S.W. 277; Fowler v. Com., 1924, 204 Ky. 525, 264 S.W. 1075; Hubbard v. Com., 1925, 207 Ky. 76, 268 S.W. 839; Maier v. Com., 1925, 210 Ky. 441, 276 S.W. 116; Duckwall v. Com., 1925, 212 Ky. 90, 278 S.W. 562; Cosby v. Com., 1926, 215 Ky. 758, 286 S.W. 1038; Wellman v. Com., 1927, 219 Ky. 323, 292 S.W. 779; Fugitt v. Com., 1927, 220 Ky. 768, 295 S.W. 1072; and Com. v. Thomas, 1928, 225 Ky. 603, 9 S.W.2d 719.

In Com. v. Thomas, 1928, 225 Ky. 603, 9 S.W.2d 719, two affiants alleged that one Charles Cain Thomas "has spirituous and intoxicating liquor in her dwelling house or on her premises * * * for the reason that they saw said liquor in jugs," etc. The trial court excluded the evidence found by the search, because the affidavit did not fix the time when the affiants saw the liquor. This action was based on Abraham v. Com., 1924, 202 Ky. 491, 260 S.W. 18, in which an affidavit stating the affiant's belief that liquor was illegally possessed at a certain place because he smelled the odor of it emanating from the premises was held insufficient. This court, however, distinguished the Abraham case as follows:

'But in that case the affiant expressed a mere belief * * * 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. * * * The affiants fixed the time of the unlawful possession of the liquor as the present, and stated it as an existing fact, and the mere statement of their reason for knowing that the liquor was then in the possession of the accused was surplusage.'

The opinion goes on to say (quoting from Neal v. Com., 1924, 203 Ky. 353, 262 S.W. 287) that the difference between the affiant's saying he believes the fact to exist and saying it does exist is that in the one case he avoids, while in the other he assumes, responsibility for the truth of the averment, from which it...