Kratzer v. Commonwealth

• Decision Date: 22 March 1929
• Court: United States State Supreme Court — District of Kentucky
• Parties: Kratzer v. Commonwealth.

228 Ky. 684

Kratzer v. Commonwealth.

Court of Appeals of Kentucky.

Decided March 22, 1929.

1. Officers. — As applied to office, word "term" speaks with reference to office itself, and not to tenure of incumbent, and means fixed period of time, during which an officer or appointee is entitled to hold office, perform its functions, enjoy its privileges and emoluments, and does not apply to appointive offices, held at pleasure of appointing power.

2. Affidavits. — Examiner appointed in year 1902, and not reappointed or removed since, had power to administer oath to one signing affidavit for search warrant, since appointment of examiner, to hold office at pleasure of court, does not offend against Constitution, sec. 23, relating to terms of office, and his right to office continued until he was removed, and did not end at expiration of four years from time of appointment, under sections 93, 107.

3. Criminal Law. — In liquor prosecution, credibility of witnesses was for jury.

4. Intoxicating Liquors. — In prosecution for illegal possession of intoxicating liquor, defendant's guilt held for jury.

5. Intoxicating Liquors. — In prosecution for possessing liquor, where defendant claimed that liquor was on premises without his authority, knowledge, or consent, failure to give instruction in substance that, if whisky was on defendant's premises without his authority, knowledge, or consent, he was not in unlawful possession of whisky, and should be acquitted, held error.

Appeal from Montgomery Circuit Court.

W.B. WHITE for appellant.

J.W. CAMMACK, Attorney General, GEO. H. MITCHELL, Assistant Attorney General, W.C. HAMILTON, Commonwealth's Attorney, and H.W. SULLIVAN, County Attorney, for appellee.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

Lawrence Kratzer has prayed an appeal from a judgment convicting him of the illegal possession of intoxicating liquor, and fixing his punishment at a fine of $100 and 30 days' imprisonment.

Acting under a search warrant, the officers went to Kratzer's grocery, in Mt. Sterling. Behind the counter, and between it and the refrigerator, they found a trapdoor that fitted into the floor. Beneath the floor was a basement. In this basement they found a jar containing a half gallon of moonshine whisky. Behind the counter they also found several jars, some of which emitted the odor of intoxicating liquor. When it was suggested that some one look down in the basement, to see what else was there, Kratzer remarked that there was no use to look further, as that was all he had. According to Kratzer, he knew of the place under the floor, but used it only for the purpose of disposing of water that came from the refrigerator. However, he had not been using it for a month prior to the search. He did not put the whisky in the hole, nor did he know it was there. Never at any time had he had any whisky in his store, since he had been there. His brother, Luther Kratzer, who had formerly worked at the grocery, testified that he was there shortly before the search, and placed a half gallon of moonshine under the floor. At that time Walter Rankins was there, eating some cheese and crackers. Lawrence Kratzer was not there, and did not know that the liquor had been placed under the floor. Luther Kratzer is corroborated by Walter Rankins, who says that he was present and saw him place the liquor under the floor. However, Leslie Campbell, the clerk, was there. Leslie Campbell testified that Luther Kratzer and Walter Rankins were in the store on the occasion referred to, and he saw them near the refrigerator. He was waiting on customers at the time, and never paid any attention to them. The accused also proved a good reputation.

The principal ground urged for reversal is that the court erred in not excluding all the evidence offered by the commonwealth, on the ground that the search was illegal. The basis of this contention is that the affidavit in support of the search warrant was made before one not authorized to administer an oath. The record discloses that the affidavit was made before W.C. Hamilton examiner from Montgomery county, Kentucky. Hamilton was appointed examiner in the year 1902, and since that time he had not been reappointed or removed. His power to act is assailed on the ground that his appointment was not good for a longer period than four years. Bearing on this question are the following provisions of the Constitution:

"The General Assembly shall not grant any title of nobility or hereditary distinction, nor create any office, the appointment of which shall be for a longer time than a term of years." Section 23.

"Inferior state officers, not specifically provided for in this constitution, may be appointed or elected, in such a manner as may be prescribed by law, for a term not exceeding four years, and until their successors are appointed or elected and qualified." Section 93.

"The General Assembly may provide for the election or appointment, for a term not exceeding four years, of such other county or district...