Mattingly v. Com.

• Decision Date: 09 February 1923
• Citation: 247 S.W. 938,197 Ky. 583
• Parties: MATTINGLY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

247 S.W. 938

197 Ky. 583

MATTINGLY v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 9, 1923

Appeal from Circuit Court, Henderson County.

Herman Mattingly was convicted of having in his possession an illicit still, and he appeals. Reversed, with directions.

Dorsey & Dorsey, of Henderson, for appellant.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

THOMAS J.

Appellant Herman Mattingly, was convicted in the Henderson circuit court on the trial of an indictment accusing him of the offense of having in his possession an illicit or moonshine still, contrary to the statute in such cases provided. He has appealed, and his counsel urge a number of grounds for reversal of the judgment, all of which, it may be said, grow out of the incompetency of the evidence offered by the commonwealth in support of the prosecution, the incompetency resulting from the insufficiency of the search warrant and the insufficiency of the affidavit upon which it was issued, and only by means of which the evidence for the commonwealth was obtained.

It may be truly said that, if the evidence was not rendered incompetent for the reason stated, it was amply sufficient to require the submission of the defendant's guilt to the jury, and likewise sufficient to sustain the verdict of guilty, so that the only question to which we shall address ourselves is the sufficiency of the documents referred to. There is some question made about the sufficiency of the search warrant in describing the tenant house on defendant's farm, where the incriminating evidence was found, as one of the places to be searched; but, in view of the fact that the affidavits upon which the warrant was issued wholly failed to measure up to the requirements as announced in the recent cases of Colley and Crawford v. Commonwealth, 195 Ky. 706, 243 S.W. 913; Price v. Commonwealth, 195 Ky. 711, 243 S.W. 927, and a number of others following them, we have concluded to confine our discussion to the affidavits alone.

There were two of them, one made by R. D. Burdon and the other by E. L. Douglas. The former, in his affidavit, stated as grounds for issuing the warrant "that he has reasonable grounds to suspect and believe, and that he does suspect and believe, that intoxicating liquors, to wit, spirituous, vinous, or malt liquors, are being kept for sale and are sold or otherwise disposed of, in violation of law in or on a one-story frame four-room house," etc. Douglas, in his affidavit, said: "That he has reasonable grounds to suspect and believe and that he does suspect and believe that intoxicating liquors, to wit, spirituous, vinous, or malt liquors, are being kept for sale and are being sold or otherwise disposed of, in violation of law, in or on a one-story frame house," etc. Each of the affiants stated that their belief extended, not only to the dwelling house, but to the "outbuildings belonging to said house." But, for the reason stated, we will not determine whether the latter statement was sufficiently descriptive to authorize the issuing of a warrant to search all the buildings on defendant's premises.

It will at once be seen that the affidavits contain no fact, but only a statement of affiants' belief, based upon "reasonable grounds," none of which are stated, but which, if they existed, appear only to the affiant and not to the court or officer whose duty it is to issue the warrant. Section 10 of our Constitution in part says:

"And no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."

The courts everywhere, and without exception, construe that and similar language in the respective Constitutions, to mean that the probable cause must appear and be possessed by the officer who issues the warrant and not necessarily by the affiant who makes the affidavit, and that it shall be made to appear to the officer issuing the warrant only upon "oath or affirmation."

The Constitutions of some of the states require that--

"No warrant shall issue but upon proper cause supported by affidavit, particularly describing the place to be searched or the person or thing to be seized."

In other words, they require that the probable cause shall be supported by affidavit instead of oath or affirmation, the latter of which is contained in our Constitution. In those states, as will be seen from the case of State v. Peterson, 27 Wyo. 185, 194 P. 342, 13 A.L.R. 1284, there must be a written affidavit setting forth the grounds for the issuing of the warrant, while it might not be so required when the Constitution uses the expression "oath or affirmation," and it was so held by this court in the case of Clark v. Hampton, 163 Ky. 698, 174 S.W. 490. But all the cases hold, no matter what the phraseology of the Constitution may be, that it is competent for the Legislature to require a written affidavit as a basis for the issuing of the warrant in the particular classes of cases the statute deals with, and when so required it must be complied with, but the subject-matter of the affidavit must measure up to the full requirements of the Constitution. In the Peterson opinion it is said:

"In a great majority of the states, as well as the courts of the United States, it has been held that an affidavit on mere belief [of the affiant] does not fulfill the requirements of the Constitution in this regard, although there are a few decisions which hold otherwise. It is generally held that an affidavit is not sufficient if it is made on information and belief and is not corroborated or supported in any way (24 R.C.L. 708), although there are some cases which hold to the contrary."

The opinion, quoting from the case of State v. Gleason, 32 Kan. 245, 4 P. 363, further said:

"Where a person or officer states upon oath 'that the several allegations and facts set forth in the foregoing opinion are true, as he has been informed and verily believes,' he may have no knowledge of or information upon the subject, except mere hearsay, and yet he can conscientiously make such declaration. * * * If a warrant, in the first instance, may issue upon mere hearsay or belief, then all the guards of the common law and of the Bill of Rights of our own Constitution, to protect the liberty and property of the citizen against arbitrary power, are swept away."

Many cases from other courts are referred to in that...