Miller v. Commonwealth
| Decision Date | 18 December 1923 |
| Citation | 257 S.W. 3,201 Ky. 423 |
| Parties | MILLER v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Pike County.
O. T Miller was convicted of unlawful sale of intoxicating liquor and appeals. Reversed and remanded.
Roscoe Vanover and J. M. Bowling, both of Pikeville, for appellant.
Thomas B. McGregor, Atty. Gen., and Lilburn Phelps, Asst. Atty Gen., for the Commonwealth.
The defendant was prosecuted in the Pike circuit court on the charge of the unlawful sale of intoxicating liquor, and his punishment fixed at a fine of $300 and 60 days' imprisonment. On this appeal his only complaint is error of the court in admitting incompetent evidence, the reason assigned being that it was procured through the medium of an illegal search warrant.
It appears that the deputy sheriff was in possession of certain information relating to defendant's business, and that he accompanied a United States Commissioner to the office of the county judge of Pike county for the purpose of making an affidavit to that effect, and of procuring a search warrant to search defendant's property. The county judge was busy, but directed the commissioner to write out an affidavit and fill in the blanks in the search warrant, and this the latter did. The affidavit was read by the commissioner and oath administered to the sheriff by the county judge, but he was still busy, and remarked that he did not have time to sign the jurat or the warrant, and told the commissioner to sign his name to those papers, and the latter did so. Acting under this warrant, the sheriff searched the residence of defendant, and found 16 gallons of liquor. On the trial the sheriff was asked as to finding the liquor, to which defendant's counsel objected, and demanded the warrant and affidavit for the inspection of the court. It was proved by the county judge, sheriff and commissioner that each of them had had custody of these papers at some time subsequent to the execution of the warrant, and each one testified that he had made diligent effort to find same, but was unsuccessful. Thereupon, over the objection and exception of defendant, the commissioner was permitted to testify as to the contents of both papers, and the sheriff as to what he found in making the search.
It has been held by this court that the officer issuing the warrant and before whom it is returned is its proper custodian thereafter, and if it should be lost or misplaced he is the proper witness to prove such loss and his inability to find it. Craft v. Com., 196 Ky. 277, 244 S.W. 696. However, this does not mean that after such loss is established no one else is permitted to testify as to the contents of the lost paper; indeed, under such circumstances we think any one who is familiar with the contents of the paper may then testify in reference thereto, and that the action of the court in this respect was not erroneous.
A more serious question arises as to the signing of these papers. Concededly in private business, as a general rule, whatever one may do in person may be done by some one else for him at his request and direction, so that, "where a person's name is signed for him at his direction and in his presence by another,...
To continue reading
Request your trial
-
Divine v. Commonwealth
...the adequacy of the affidavit, since the failure of the county judge to sign the search warrant was fatal to its validity. Miller v. Com., 201 Ky. 423, 257 S.W. 3. The Act of 1914 (Acts 1914, c. 43), authorizing the appointment, in certain counties, of a stenographer or clerk to serve the c......
-
State v. Cochrane
...it shows on its face that it lacks the signature of a magistrate vested by statute with power to issue the same. See Miller v. Commonwealth, 201 Ky. 423, 257 S.W. 3; Wilson v. Commonwealth, 211 Ky. 709, 277 S.W. 1019; Divine v. Commonwealth, 236 Ky. 579, 33 S.W.2d 627; Turner v. Commonwealt......
-
Divine v. Commonwealth
...action, and involving the exercise of judicial discretion, to be signed by the judge in person, are explained in the opinion in Miller v. Com., supra, and we no reason to relax the rigor of the rule. Cf. Payton v. McQuown, 97 Ky. 757, 31 S.W. 874, 17 Ky. Law Rep. 518, 31 L. R. A. 33, 53 Am.......
- Farmer v. Gipson