Moore v. Commonwealth

• Decision Date: 23 January 1925
• Citation: 206 Ky. 779
• Parties: Moore v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 779

206 Ky. 779

Moore v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 23, 1925.

Appeal from Pike Circuit Court.

PICKLESIMER & STEELE for appellant.

FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE CLARKE — Affirming.

Appellant was convicted of unlawfully possessing intoxicating liquors upon evidence obtained by a search of his room in the Lloyd Hotel, located on Second street in Pikeville, Ky. For reversal of that judgment he insists that the search was illegal because the search warrant does not sufficiently describe the searched premises and because the officer failed to make proper return thereon.

The warrant reads:

"You are commanded to search, in the day or nighttime, the room No. 25, Loyd Hotel, held by Bill Moore grip and persons in the possession of moonshine liquor and which is located in Pike county, Ky., and on Second street."

The warrant was issued by the police judge of Pikeville, and executed by a city policeman who made the affidavit therefor. In that city there is a Lloyd Hotel located on Second street, and room No. 25 therein was occupied by appellant. There is no evidence or claim that there is any other Lloyd Hotel in Pike county, and it is therefore apparent that the warrant clearly and definitely located the place to be searched to anyone conversant with local conditions, even though the name of the hotel was misspelled and its location in Pikeville was inadvertently omitted.

This description is much more definite and certain than the one held insufficient in Taylor v. Commonwealth, 198 Ky. 728, 249 S. W. 1035, upon which appellant relies, or the one in Little v. Commonwealth, 205 Ky. 55, 265 S. W. 433, relied upon by appellee, and there is no merit in this contention for the appellant.

Upon the question of the admissibility of evidence obtained by a search made by an officer under a search warrant, it seems to us that it is wholly immaterial whether or not the officer made due, or proper, or any return thereon, since the legality of the search depends upon the validity of the warrant and the manner of its execution rather than upon any subsequent failure of the officer to perform his duty.

Although our statute does not so specify, it is the duty of the officer, of course, to indorse on the warrant the manner and time of his execution thereof before his return of same to the issuing magistrate. This indorsement when...