Nestor v. Commonwealth

• Decision Date: 25 April 1924
• Citation: 261 S.W. 270,202 Ky. 748
• Parties: NESTOR v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

261 S.W. 270

202 Ky. 748

NESTOR v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 25, 1924

Appeal from Circuit Court, McCracken County.

Jake Nestor was convicted of unlawfully possessing an illicit still, and appeals. Reversed.

J. Bell Nichols, of Paducah, for appellant.

Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty Gen., for the Commonwealth.

O'NEAL J.

Appellant was indicted and convicted upon the charge of unlawfully possessing an illicit still, and his punishment was fixed at 3 months' confinement and a fine of $100.

Acting under a search warrant, the officer to whom it was addressed together with other officers, searched the house described in said warrant, and found and seized a still located in one of the rooms of said house. The undisputed facts show that the house described in the search warrant, as being occupied by and in the possession of one Henry Hammonds, belonged, in fact, to his mother, and that during her absence from Paducah--she then being so absent--he had full charge and control of it as her agent. The sufficiency of the description of the house itself is not being questioned on this appeal. The house consisted of six rooms, in four of which was the furniture of Mrs. Hammonds, the owner; the two remaining rooms were apparently divided or separated in some manner from the rest of the house, for it is stated in the record that the occupants of these rooms could not get into the rest of the house without going outdoors. Access to these two rooms could only be gained through an outside door at the rear of the house. Some few days before the premises were searched, appellant and another man had leased these two rooms from Henry Hammonds for a period of one month, and while not actually present, appellant was in possession of them during the time the search was made. The officers who executed the warrant not only searched the four rooms remaining in the control and possession of Henry Hammonds but likewise searched the two rooms leased by Henry Hammonds to the appellant, and it was in one of these rooms that the still was found.

Upon finding the still, the officers arrested Hammonds, and he disclosed to them the foregoing facts, and promptly swore out a warrant for the arrest of appellant, to whom he had leased the rooms in which the still was discovered. It is the contention of appellant that under the foregoing state of facts search of the premises...