Rogers v. Com.

• Decision Date: 09 February 1968
• Citation: 424 S.W.2d 130
• Parties: Robert ROGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 130

424 S.W.2d 130

Robert ROGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 9, 1968.

J. B. Johnson, Jr., Williamsburg, for appellant.

Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.

DAVIS, Commissioner.

Having been convicted of possessing alcoholic beverage for sale in local option territory, Robert Rogers prosecutes this appeal by appropriate motion, attacking the sufficiency of the affidavit in support of the search warrant and asserting prejudicial misconduct of the trial judge.

Omitting the caption and other irrelevant portions of the affidavit, we quote so much of it as constitutes the basis of the claimed error: 'The affiant states that he bases the aforesaid belief on his own knowledge and observations made by him that this affiant on March 17, 1967 at 11:00 A.M. saw a man coming from the above premises, with a brown paper bag, which appeared to be a 6 pack-beer. The man also appeared to be intoxicated--affiant knows said man as a Mr. Mobley. The affiant says Robert Rogers has a reputation as a bootlegger and he has some beer, whiskey and other alcoholic beverages now in his house or premises adjacent thereto on today for the purpose of sale, gift or barter in violation of the Local Option Law.'

The applicable principles respecting issuance of a search warrant have been stated frequently. Kentucky Constitution, Section 10, provides in part that '* * * no warrant shall issue to search any place, * * * without probable cause supported by oath or affirmation.' The vital question before us is whether the quoted affidavit was sufficient to afford basis for the constitutionally required 'probable cause.' In our view, it was.

Appellant relies on Elliott v. Commonwealth, 216 Ky. 270, 287 S.W. 726, in which a closely similar question was presented. In Elliott the court referred to Goode v. Commonwealth, 199 Ky. 755, 252 S.W. 105, wherein it was recited that the usual test of sufficiency of an affidavit for a search warrant is whether it is so drawn as to support a prosecution of the affiant for false swearing in the event its allegations are proven false. We have other cases reaffirming that test, but in light of recent developments in the law, we question whether they are still sound.

In Henson v. Commonwealth, Ky., 347 S.W.2d 546, we specifically renounced the 'ultimate fact' theory as a basis for deducing 'probable cause' from an affidavit for a search warrant. That decision has been followed in Smallwood v. Commonwealth, Ky., 349 S.W.2d 830; Scamahorne v. Commonwealth, Ky., 376 S.W.2d 686; and other opinions. ¹ It would appear, therefore, that the basis for testing the sufficiency of the affidavit by whether its author could be sued or prosecuted for false swearing no longer exists. Reference is had to Gossett v. Commonwealth, Ky., 426 S.W.2d 485, wherein we recognized the more modern guideline laid down in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. We adhere to the principles therein enunciated ahd have no difficulty in concluding that the allegations of the affidavit under consideration were adequate to support a finding of 'probable cause' by the issuing magistrate. If this case should be deemed 'doubtful or marginal,' the resolution of that doubt is tipped in favor of the warrant. To the extent that Elliott v. Commonwealth, 216 Ky. 270, 287 S.W. 726, may be deemed in conflict with this opinion, it is overruled.

The Commonwealth announced closed before having proved that Whitley County is local option territory as prescribed by KRS Chapter 242. At that point appellant moved the court for a directed verdict of acquittal, which was denied. Thereupon the appellant announced closed. Then it was, according to the brief for the appellant (and not denied in the appellee's brief), that the presiding judge whispered to the Commonwealth's attorney that the latter had inadvertently failed to prove the existence of local option in Whitley County. After receiving this information from the judge, the prosecuting attorney moved the court for permission to reopen the case, and the motion was sustained over the appellant's objection. Then the technical proof of existing local option was introduced. Appellant was then permitted to reopen his case.

We are committed to the proposition that the trial judge shall refrain from partisan participation in litigation over which he presides. Merritt v. Commonwealth, Ky., 386 S.W.2d 727; Preston v. Commonwealth, Ky., 406 S.W.2d 398. It remains to determine whether the alleged actions of the trial judge were of such a nature as to warrant reversal of this conviction. We conclude that they were not.

As recently as Patterson v. Commonwealth, Ky., 411 S.W.2d 940, we held that the failure of the prosecution...