Price v. Com.

• Decision Date: 26 September 1922
• Parties: PRICE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

243 S.W. 927

195 Ky. 711

PRICE v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 26, 1922

Appeal from Circuit Court, Fayette County.

Nannie Price was convicted of illegally possessing intoxicating liquors, and appeals. Reversed and remanded.

Miller & Miller, of Lexington, for appellant.

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

CLAY J.

Appellant Nannie Price, was convicted of the offense of illegally possessing intoxicating liquors, and her punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 40 days. She was also required to furnish a peace bond in the sum of $1,000.

It is first contended that the court erred in permitting certain officers to testify, over appellant's objection, that they searched her premises and found therein several gallons of moonshine whisky. The basis of this contention is that the search warrant was illegal because the affidavit therefor was insufficient. The affidavit for the search warrant was made before Ed Lawrence, a justice of the peace of Fayette county and, omitting the signatures and jurat, is as follows:

"State of Kentucky, County of Fayette--Sct.:

Come the affiants, Ernest Thompson, assistant chief police, and Dudley Veal, a reputable citizen, and state that they have reasonable grounds for believing, and do believe, that the liquor laws of the commonwealth are being violated by Nannie Price, who resides (or operates a place of business) at No. 319 on Race street, in the city of Lexington, Fayette county, Ky. and that on said premises spirituous, vinous, malt, or intoxicating liquors are being manufactured, sold, kept for sale, bartered, or possessed unlawfully, or that a still or apparatus designed for the manufacture of said liquors are unlawfully being possessed, in violation of law. They state that the reasons for so believing are based upon the following facts: 'We have information that about 10 gallons of moonshine whisky is hid at No. 319 Race street.' "

It is the established rule in this state that evidence obtained by an illegal search and seizure is inadmissible, and that the question may be properly raised by an objection made at the time the evidence is offered. Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303.

Section 10 of our Constitution, which is substantially the same as the Fourth Amendment to the Constitution of the United States, is as follows:

"The people shall be secure in their persons, houses, papers and possessions from unreasonable search and seizure; and no warrant shall issue to search any place or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." The language of this section is clear and unequivocal, and provides that no warrant shall issue to search a place, or seize any person or thing without probable cause supported by oath or affirmation. In interpreting the Fourth Amendment to the federal Constitution, and similar provisions in the Constitutions of the various states, it has been uniformly held that the existence of probable cause is a question for the court, and cannot be delegated to the accuser. Therefore it is necessary to lay before the court the facts from which the existence of probable cause may be determined, and an affidavit which states that the affiant believed or had been informed that a certain state of case existed is not regarded as sufficient. United States v. Rykowski (D. C.) 267 F. 866; United States v. Kelih (D. C.) 272 F. 484; Ripper v United States, 178 F. 24, 101 C.C.A. 152; Lippman v. People, 175 Ill. 101, 51 N.E. 872; Swart v. Kimball, 43 Mich. 443, 5 N.W. 635; Monroe v. State, 137 Ala. 88, 34 So. 382. An interesting case is that of State v. McGahey, 12 N.D. 535, 97 N.W. 865, 1 Ann.Cas. 650, where the court held that an affidavit made upon information and belief, and not otherwise corroborated, does not "state or show" the facts required, and confers no jurisdiction upon the court to issue a search warrant under section 7605, Rev. Codes 1899. In discussing the question the court said:

"The affidavit presented to the court in this case did not state or show the required facts, but merely asserted that the state's attorney was informed and believed that the facts did exist. The affidavit is uncorroborated. It does not give the name of the person furnishing the information; makes no statement as to where or how the

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