Kincaid v. State

Writ of Prohibition — Intoxicating Liquors — Suppression of Evidence — Search-warrants — Issuance — Approval of County Attorney — Affidavit must Contain Facts, not Conclusions — What Sufficient. Search-warrants — Issuance — Evidence of Approval by County Attorney — What Sufficient. 1. A justice of the peace court being one of limited jurisdiction, the fact that the approval of the county attorney to the issuance of a search-warrant must affirmatively appear from the record on application for writ to prohibit the use of evidence obtained by the search, but in the absence of any statutory requirement in Chapter 116, Laws of 1923, amendatory of section 11071, Revised Codes of 1921, of how the approval shall be evidenced, a recital that his approval was obtained is prima facie sufficient to establish the fact. Same — Affidavit — Facts must be Stated — Conclusions Insufficient. 2. To warrant the issuance of a search-warrant the affidavit must state facts, conclusions, however positively stated, being insufficient, the test whether the statements are one or the other being whether the affiant could be prosecuted for perjury if the statements were false. Same — Affidavit — Statement of Fact — What Constitutes. 3. Under the above rule (par. 2), held that a recital in an affidavit for a search-warrant, "I personally saw a keg of intoxicating beverages in said barn," without disclosing the means employed by affiant for ascertaining the contents of the keg, was a statement of fact for the making of which, if untrue, a charge of perjury could be lodged against him, and therefore sufficient, if believed by the magistrate, to show probable cause for the issuance of the warrant. (MR. JUSTICE GALEN dissenting.)