314 Ky. 279 | Ky. Ct. App. | 1950
Reversing.
The appeal is from a judgment of the Estill Circuit Court forfeiting to the Commonwealth a certain lot and store building owned by appellant Ashcraft and located in Estill County. The basis of the forfeiture is that the owner thereof has permitted the property to be used for the unlawful sale of intoxicating liquors in dry territory and is provided for in KRS 242.310 and 242.320. Appellant seeks reversal on the ground that the evidence is not sufficient to show that Ashcraft knew the property was being used in violation of the statute or that he intentionally rented it for that purpose.
Appellant Chaney owned the property until August 23, 1947 when he sold it to Ashcraft for the sum of $900 in cash. Previous to the sale a business was being operated on the premises by Hershel Marcum who had rented the property from Chaney. In July, 1947, Mar-cum was arrested for having liquor and a slot machine in his possession on the property, was found guilty of possessing liquor for sale in dry territory, and paid his fine and served his jail sentence. While he was in jail and until Chaney sold the property to Ashcraft one of Marcum’s relatives operated the store. Ashcraft formerly lived in Estill County in the vicinity of the store but had been living in Dayton, Ohio for nine or ten years throughout which period of time he purchased six separate pieces of property in Estill County, the last of which is involved in this suit. Ashcraft would visit Estill
Chester Chaney and Ashcraft are related by marriage, Ashcraft’s mother having married Chester’s grandfather whose name was Tipton. All of the transactions disclosed by the evidence would lead one to suspect that Ashcraft is not as innocent as he would have us believe, but, under all the circumstances disclosed by the evidence, we are forced to admit that a conclusion to that effect would be the result of mere speculation.
The forfeiture statute, KBS 242.320, is a drastic measure, and, to avoid contravention of the Fifth and Fourteenth Amendments of the Constitution of the Hnited States forbidding the taking of one’s property without due process of law, the evidence in such a case clearly must establish the existence of all the conditions rendering the property subject to forfeiture. One of these conditions is that the owner of the property must know or intend that the property is being or is to be used for the unlawful purpose charged. One sale of
The judgment is reversed for proceedings not inconsistent with this opinion.