Poston v. Commonwealth

• Decision Date: 30 November 1923
• Citation: 201 Ky. 187,256 S.W. 25
• Parties: POSTON ET AL. v. COMMONWEALTH FOR USE AND BENEFIT OF CITY OF FRANKLIN.
• Court: Kentucky Court of Appeals

256 S.W. 25

201 Ky. 187

POSTON ET AL. v. COMMONWEALTH FOR USE AND BENEFIT OF CITY OF FRANKLIN.

Court of Appeals of Kentucky.

November 30, 1923

Appeal from Circuit Court, Simpson County.

W. C Poston and another were convicted of transporting intoxicating liquors in violation of law, and appeal. Reversed.

G Duncan Milliken, of Bowling Green, and C. E. Evans, of Franklin, for appellants.

Chas I. Dawson, Atty. Gen. and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

SAMPSON C.J.

Appellants Poston and Crouch ask the reversal of a judgment finding them guilty of transporting intoxicating liquors in violation of law, and fixing their punishment at a fine and bail sentence, on the ground that the evidence introduced against them was incompetent, having been obtained, as they contend, through and under a search warrant based upon an insufficient affidavit. At the conclusion of the evidence for the commonwealth, the attorney for appellants entered a motion for a directed verdict in their favor, and also a motion to exclude all the evidence given by the witnesses for the commonwealth which was obtained by reason of the search warrant. These motions were both overruled. The affidavit, of which complaint is made, reads as follows:

"Affiant, J. H. Aspley, states that he is chief of police of the city of Franklin, Ky.; he states that Mr. Pemberton, chief of police at Bowling Green, Ky. called this affiant upon the telephone on this Thursday, October 26, 1922, and told him that two men, W. C. Poston and J. A. Crouch, left Bowling Green, Ky. to-day, for the purpose of securing a load of whisky and other intoxicating liquors, and went to state of Tennessee to procure same. That said parties are traveling in a Ford touring car, which appears to be brand new and bearing Kentucky license No. 164201 on both rear and front ends, and has sign marked "Caution to Users," on left-hand side of wind shield. That said parties passed through the city of Franklin to-day near 2 o'clock p. m., and were driving south towards the Tennessee line. That this affiant believes that said Poston and Crouch are going to Tennessee to procure a load of whisky and transport same from Tennessee through Franklin, Simpson county, Ky. to Bowling Green, Ky."

It will be noticed that the chief of police of Bowling Green called up the chief of police of Franklin and told him that appellants Poston and Crouch left Bowling Green on their way to Tennessee the day of the telephone conversation, for the purpose of securing in Tennessee a load of whisky and other intoxicating liquor; that they were traveling in a Ford touring car with a given license number. In addition to the foregoing, the affiant of his own knowledge stated appellants Poston and Crouch passed through the city of Franklin on that day about 2 o'clock p. m., and were driving south towards the Tennessee line. He then adds:

"This affiant believes that said Poston and Crouch are going to Tennessee to procure a load of whisky and transport same from Tennessee through

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