Lakes v. Com.

• Decision Date: 28 September 1923
• Parties: LAKES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

254 S.W. 908

200 Ky. 266

LAKES v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 28, 1923

Appeal from Circuit Court, Madison County.

Walter Lakes was convicted of owning an illicit or moonshine still and appeals. Reversed, with directions to sustain motion for new trial.

John Noland, of Richmond, for appellant.

Thos B. McGregor, Atty. Gen., and Lilburn Phelps, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

The appellant, Walter Lakes, was indicted, tried, and convicted in the Madison circuit court on the charge of owning an illicit or moonshine still. From the judgment rendered on the verdict he prosecuted this appeal, and through his counsel insists that the verdict is not sustained by the evidence because (a) it was obtained under an illegal search warrant but if mistaken in that contention, then (b) the facts testified to by the witnesses for the commonwealth do not possess the requisite probative value to support the conviction, and we are constrained to the conclusion that both contentions are correct.

Considering the first contention, (a), the warrant contained an extremely general and vague description of the property to be searched, without describing in any manner, general or otherwise, any building, but referring only to the "farms and residences and outbuildings in Madison county" of the persons named therein. But we have concluded that it will not be necessary for the disposition of this appeal to determine the sufficiency of that description in order to authorize the officer to search the entire premises and all the buildings located thereon, including the dwelling houses, since the affidavit upon which the warrant was issued wholly failed to measure up to the requirements in such cases. We have recently held in a number of cases, in which others from other courts, as well as text-writers, are cited, that, under the wording of our constitutional provision, the affirmation or oath upon which the warrant is issued must contain more than the affiant's belief of the location of the forbidden article, or that he merely "has reasonable grounds" for such belief.

In this case the only affidavit for the procurement of the search warrant that is made a part of the record states that the affiant has "reasonable grounds to believe," etc., and that his reason for entertaining such belief was "A general talk of the people in the neighborhood." A mere recitation of that reason is all that is necessary to demonstrate its insufficiency. It states no fact or circumstance calculated to inspire belief, and purports to recite only a rumor without any fact for its foundation, or whether it was of recent or remote circulation. It is therefore perfectly manifest that contention (a) must be sustained.

In disposing of contention (b) a brief recitation of the substance of the evidence is necessary. Matt Lakes, Will Lakes, and Dan Lakes, persons named in the search warrant with the defendant, own land across a public road adjoining that owned by the defendant, and a portion of their land immediately opposite defendant's residence near the public road is woodland, with a number of paths traversing it, some of which, under the proof, have been used by the people of the neighborhood for as long as 40 years. Defendant is distantly related to the others named, but is no way interested in the control or management of their farm. About 150 or 200 yards from the public road separating the two farms and in the woodland, the officers, who executed the alleged search warrant, found a still, and, in searching the house of some of the owners or possessors of that tract, they found quite a quantity of moonshine whisky. Defendant denies...