Owens v. Com.

• Decision Date: 22 February 1949
• Citation: 309 Ky. 478,218 S.W.2d 49
• Parties: OWENS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

218 S.W.2d 49

309 Ky. 478

OWENS v. COMMONWEALTH.

Court of Appeals of Kentucky

February 22, 1949

Appeal from Circuit Court, Boyd County; Watt M. Prichard, Judge.

Kenneth Owens was convicted of unlawfully setting up and carrying on a game of chance, and he appeals.

Reversed.

Roy Wilhoit, of Catlettsburg, for appellant.

A. E Funk, Atty. Gen., and Armand Angelucci, Asst. Atty. Gen., for appellee.

KNIGHT Justice.

Statement.

Appellant was indicted by the grand jury of Boyd County for the crime of setting up and carrying on a game of chance known as poker in violation of K. R. S. 436.230. Upon trial of the case before a jury, he was convicted and his punishment fixed at a fine of $500 and one year in the State Penitentiary. From a judgment based on that verdict, he prosecutes this appeal.

Points on Appeal.

Reversal of the judgment is sought on four grounds: (1) Error of the trial court in overruling appellant's motion to quash the search warrant and to suppress the evidence produced thereunder; (2) admission of incompetent evidence as to appellant's reputation; (3) court erred in overruling defendant's motion for peremptory instruction; (4) the verdict is contrary to law and is flagrantly against the evidence.

Defective Affidavit.

Since the case must be reversed on ground (1), it will not be necessary for us to consider the other grounds.

No complaint is made of the general form of the affidavit which was made by a police officer to secure the search warrant, but upon the source from which he obtained his information as set out in the closing paragraph of that affidavit as follows:

'The affiant further states that he obtained his information upon which to base his said belief as follows, to wit Affiant states that on the 8th day of August, 1947, a boy by the name of Smith told this affiant that he purchased beer and whiskey on the premises at the above address and later played poker and lost $70.00, and that this affidavit is made for the purpose of procuring a search warrant to be issued for the search of said premises and the seizure of said articles.'

We are of the opinion that the above affidavit is defective in two particulars; first because it did not fix or state any time whem the boy named Smith bought the whiskey or lost his money playing poker. True, the affidavit gives the date when the boy told the affiant, but no mention is made of the time when the gambling occurred. We held this to be necessary in the case of Bentley v. Commonwealth, 239 Ky. 122, 38 S.W.2d 963, in which we said:

'In the cases of Abraham v. Commonwealth, 202 Ky. 491 260 S.W. 18, 19; Griffith v. Commonwealth, 209 Ky 143, 272 S.W. 403, and Coleman v. Commonwealth, 219 Ky. 139, 292 S.W. 771, 772, we had before us affidavits, in support of the issuance of search warrants, which contained statements to produce probable cause for the issuing of the warrant in all essential respects the same as the above excerpt from the affidavit in this case for the same purpose. In each of those cases we held...