Neal v. Commonwealth

• Decision Date: 23 May 1924
• Citation: 203 Ky. 353,262 S.W. 287
• Parties: NEAL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

262 S.W. 287

203 Ky. 353

NEAL v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 23, 1924

Appeal from Circuit Court, Jefferson County, Criminal Branch Criminal Division.

Frank Neal was convicted of having whisky in his possession unlawfully, and appeals. Affirmed.

Matt J Holt and Martin T. Moran, both of Louisville, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

CLARKE J.

Appellant was convicted of having whisky in his possession unlawfully and the evidence of his guilt was obtained, in part, under a search warrant.

The sufficiency of the affidavit upon which the search warrant issued is attacked upon the ground that it does not state any facts or circumstances upon which the officer issuing the warrant could have determined for himself whether probable cause existed for issuing it. If this be true, then, under a long line of cases, the affidavit was fatally defective, the warrant was invalid, and the evidence obtained thereby was incompetent, as appellant contends. Price v. Commonwealth, 195 Ky. 711, 243 S.W. 927; Crawford v. Commonwealth, 195 Ky. 706, 243 S.W. 913; Craft v. Commonwealth, 197 Ky. 612, 247 S.W. 722; Carter v. Commonwealth, 197 Ky. 400, 247 S.W. 3; Poston & Crouch v. Commonwealth, 201 Ky. 189, 256 S.W. 25; Taylor v. Commonwealth, 198 Ky. 728, 249 S.W. 1035.

But we also have held in numerous cases upon which the commonwealth relies that it is sufficient if the affidavit states the ultimate facts as facts, and not merely as a belief. Mattingly v. Commonwealth, 197 Ky. 583, 247 S.W. 939; Caudill v. Commonwealth, 198 Ky. 695, 249 S.W. 1005; Walters v. Commonwealth, 199 Ky. 182, 250 S.W. 839; Goode v. Commonwealth, 199 Ky. 758, 252 S.W. 105; Moore v. Commonwealth, 200 Ky. 419, 255 S.W. 77.

In so far as pertinent, the affidavit reads:

"The affiant states that he knows that intoxicating liquors are sold and possessed at said soft drink stand contrary to and in violation of the Kentucky prohibition law."

There is a manifest and material difference in the statement by an affiant that he believes there is whisky in a described place and his statement he knows there is whisky there. In the one instance he avoids and in the other he assumes responsibility for the truth of his averment, and it is this difference that marks the dividing line between the cases. In the first case the affidavit does not furnish the magistrate any basis whatever for determining if probable cause exists. Nor does it afford the accused the basis for action against his accuser for redress if probable cause does not exist. But, if the affiant swears that facts constituting probable cause exist, or that he knows they exist, the magistrate has reasonable grounds for believing same to exist or not dependent upon whether or not in his judgment the affiant is worthy of belief. And the accused may proceed against his accuser for damages resultant from such an accusation, if false.

As said in the Goode Case, supra:

"The usual test of the sufficiency of an affidavit is whether it is so drawn that a prosecution could be maintained thereon if any material allegation contained therein is false. No sustainable charge could be based on an affidavit falsely alleging information and belief, but a provable charge could be based on an affidavit

...