Yopp v. Com.

• Decision Date: 22 April 1924
• Citation: 202 Ky. 716,261 S.W. 251
• Parties: YOPP v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

261 S.W. 251

202 Ky. 716

YOPP v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 22, 1924

Appeal from Circuit Court, McCracken County.

Gus Yopp was convicted of unlawfully having spirituous liquor in his possession, and appeals. Affirmed.

Crossland & Crossland, of Paducah, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

First tried in the Paducah police court upon a warrant issued by the judge thereof charging him with the offense of unlawfully having in his possession "spirituous liquor," to wit, "white whiskey," the appellant, Gus Yopp, was found guilty and his punishment fixed at a fine of $100, and 30 days confinement in jail. From the judgment of that court he took an appeal to the McCracken circuit court, and on the trial by jury resulting therein was again found guilty of the offense charged and his punishment fixed at a fine of $300 and 60 days confinement in jail, and from the judgment of the latter court he has appealed to this court.

The appellant asks the reversal of the judgment of conviction because of error alleged to have been committed by the trial court: (1) In the admission of incompetent evidence in behalf of the commonwealth. (2) In overruling his motion for an instruction peremptorily directing the jury to return a verdict of not guilty. The evidence complained of as incompetent was a search warrant issued by the police judge of Paducah, in executing which Nelson, chief of police of that city, discovered in a building owned by the appellant the whisky, the alleged possession of which by him constituted the offense of which he was convicted. The search warrant, together with the affidavit whereby its issuance was procured, was read in evidence, to which the appellant objected and excepted; and his counsel insists that the search warrant is fatally defective because of the insufficiency of its description, both of the premises to be searched and the property sought to be discovered by the search. We find no merit in this contention. Following the customary reference to the affidavit authorizing its issuance required to be stated in such a warrant, the building and premises authorized to be searched thereunder, and property sought to be discovered by such search, are thus described in the search warrant:

"The house, buildings and premises at 1034 Murrell Blvd. in Paducah, McCracken county, Kentucky, occupied and in the possession of Gus Yopp and Ed Sears * * * for the detention of any intoxicating liquors which are kept there for sale or other disposition; also for any illicit still or apparatus designed for the manufacture of intoxicating liquors illegally possessed in violation of chapter 33, of the Acts of the 1922 session of the General Assembly of the commonwealth of Kentucky. * * *"

Obviously the above description of the building and premises to be searched is definite and certain, and this is also true of the description given of the thing or property for which the search was to be made. While the statute of this state (chapter 33, § 1, Acts 1922) known as the prohibition enforcement statute, in describing the liquors outlawed by its provisions, first employs the terms "spirituous, vinous and malt liquors," it also employs in connection with those words, immediately after the word "malt," the further descriptive words "or intoxicating liquors," and the words "intoxicating liquors" are sufficiently comprehensive to include not only spirituous, vinous, or malt liquors, but also any other drinkable liquid containing such ingredients or properties as might produce intoxication. It is not required that the quality or character of the intoxicating liquor be described in the warrant in the precise language or by all the terms employed by the statute in describing it, but only necessary to so describe it as to show that it is intoxicating liquor of the quality or character embraced by the statute. We are clearly of the opinion that the description given by the search warrant in question of the building and premises authorized to be searched, and also of the property thereby sought to be discovered, meets the requirements of section 10, Constitution, relating to searches and seizures. Mattingly v. Commonwealth, 197 Ky. 583, 247 S.W. 938; Caudill & McLemore v. Commonwealth, 198 Ky. 695, 249 S.W. 1005.

We do not understand that the appellant objects to the sufficiency of the affidavit upon which the search warrant was issued, and, if we are right in the conclusion we have expressed with respect to the sufficiency of the search warrant, it follows that the ruling of the trial court, in admitting it as evidence in behalf of the commonwealth on the appellant's trial, was not error.

The second...