Wilson v. Commonwealth

• Decision Date: 19 March 1929
• Parties: Wilson v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

228 Ky. 517

Wilson v. Commonwealth.

Court of Appeals of Kentucky.

Decided March 19, 1929.

1. Criminal Law. — On objection to evidence obtained by search of premises, it was incumbent on commonwealth to produce search warrant relied upon, or, if it was lost, to account for loss and prove its contents by competent evidence.

2. Criminal Law. — Where commonwealth fails to produce search warrant relied upon or to account for its loss and prove contents by competent evidence, evidence obtained by search introduced should not be considered.

3. Criminal Law. — Effect of motion to exclude evidence obtained by search of premises and of motion to require commonwealth to produce affidavit and search warrant was same as if defendant had objected to introduction of evidence in first instance.

Appeal from Jackson Circuit Court.

A.W. BAKER for appellant.

J.W. CAMMACK, Attorney General, and GEO. H. MITCHELL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE McCANDLESS.

Reversing.

Hubert Wilson was fined $250 and sentenced to 30 days in jail for a violation of the Prohibition Law (Laws 1922, c. 33). He has entered a motion for an appeal from that judgment. The evidence and rulings of the court are set out in narrative form in a bystander's bill of exceptions, which reads:

"We went over there to the home of Hubert Wilson, we found him and his wife out in their garden at work, I told him that we wanted to make a search around on his premises to see what we could find, and he said to us to go ahead and search all you please, and about this time his wife started off toward the house, I then said to him we will have to search your house, he said if you are going to search my house you will have to have a search warrant, we went to his house and made a search and in the upstairs part of his house we found two cracker cans that had been used in making whisky, we then went and searched other places about the house and we found under the floor of his chicken or hen house other apparatus for making whisky

"Squire Huff was along with us and I am sure there was an affidavit made for a search warrant to search the house and premises of defendant, Hubert Wilson, I do not know who made the affidavit, and I never saw it made, and I am sure Squire Huff issued a search warrant to search the house and premises of defendant, before we made the search. I cannot state the substance of the affidavit or the search warrant. I do not know where the affidavit or search warrant is at...