Keith v. Commonwealth

• Decision Date: 23 January 1923
• Citation: 247 S.W. 42,197 Ky. 362
• Parties: KEITH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

247 S.W. 42

197 Ky. 362

KEITH v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 23, 1923

Appeal from Circuit Court, Montgomery County.

Pierce Keith was convicted of unlawfully possessing intoxicating liquors. He appeals. Affirmed.

W. B White, of Mt. Sterling, for appellant.

Chas I. Dawson, Atty. Gen., T. B. McGregor, Asst. Atty. Gen., and W. C. Hamilton, Commonwealth's Atty., and W. A. Samuels Co. Atty., both of Mt. Sterling, for the Commonwealth.

SAMPSON C.J.

Appellant, Keith, was arraigned in the Montgomery quarterly court on a warrant purporting to accuse him of unlawfully having liquor in his possession. Being convicted, his punishment was fixed at a fine and jail sentence. From this judgment he appealed to the Montgomery circuit court. There he demurred to the warrant, but the demurrer was overruled, and the trial proceeded. At the conclusion of the evidence for the commonwealth appellant moved the court to direct the jury to find and return a verdict in his favor. The commonwealth's attorney asked for time to consider the motion. Later in the day the attorney for the commonwealth moved the court to discharge the jury and quash the warrant, to which motion appellant objected and urged the court to sustain appellant's motion for a directed verdict in his favor. The court overruled appellant's motion for a directed verdict and sustained the motion of the commonwealth to discharge the jury and dismiss the warrant. At the same term of the court the grand jury returned an indictment against appellant, Keith, accusing him of the offense of unlawfully having in his possession intoxicating liquors, which indictment was sufficient in form and substance. Being arraigned, appellant pleaded not guilty, also in writing pleaded former jeopardy by being tried upon the same charge under the warrant to which we above referred. The plea of former jeopardy was overruled, and appellant put upon trial before a jury and convicted of the offense charged in the indictment, and his punishment fixed at a fine and imprisonment in the county jail. From that judgment he appeals to this court for a reversal thereof on four grounds: (1) The affidavit upon which the search was issued stated conclusions only and not facts, and therefore did not authorize the issual of the search warrant, and the evidence obtained thereunder was incompetent; (2) that portion of the prohibition act of 1922 (Acts 1922, c. 33) which authorized the introduction, as substantive evidence, of the general reputation of defendant for bootlegging, is violative of the spirit if not the terms of section 13 of the Constitution of the state of Kentucky, and should not be upheld; (3) the evidence in this case did not authorize a conviction; and (4) the evidence discloses beyond question that the appellant had been formerly tried and acquitted on the charge under which he was convicted, and the court therefore should have directed the jury to have entered a verdict of not guilty.

1. The affidavit on which the search warrant was issued reads, in part, as follows: "The affiant, C. E. Duff, says he is a citizen of this state; that he has reasonable grounds to believe, and does believe, on personal knowledge and on information reliably obtained and verified, that in a house, etc.," intoxicating liquors are wrongfully possessed. This affidavit does not set forth the facts upon which the affiant Duff bases his belief, nor facts sufficient to have produced in the mind of the judge by whom the warrant was issued probable cause to believe that appellant, Keith, or any one, had intoxicating liquors in possession unlawfully at the place mentioned in the warrant or elsewhere. The affidavit, therefore, was insufficient to justify the issual of the search warrant by a judge of the quarterly court. The search warrant issued upon the foregoing affidavit is even more deficient than the affidavit, in that it does not mention the name of the accused, Keith, or the name of any other person, and is in other respects insufficient. The sheriff was therefore unauthorized to make a search of the house and premises of appellant, Keith, under said alleged search warrant, and the search made thereunder being unlawful, the evidence thus obtained was incompetent. Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A. L. R. 1303.

2. Appellant next insists that the prohibition act of 1922 is in violation of section 13 of the Constitution of our state, in that said act attempts to authorize the introduction of the general reputation of the defendant for bootlegging as substantive evidence against him. With this contention we cannot agree. We can see no relation between the thirteenth section of the Constitution and the fifteenth section of the 1922 Prohibition Act. Undoubtedly the General Assembly has power to change the common-law rules of evidence by properly enacted statutes, and having undertaken in the proper manner to authorize the introduction of evidence proving the reputation of a defendant for bootlegging as substantive evidence, we can see no reason why such legislation should not be enforced if it does not contravene section 13 or some other provision of our fundamental law. Price v Commonwealth, 195 Ky. 711, 243 S.W. 927; Handshoe v....