159 Ky. 839 | Ky. Ct. App. | 1914
Opinion op the Court by
— Reversing.
Defendant, A. C. Cook, was convicted of the offense of maintaining a nuisance. His punishment was fixed at a fine of $150 and 20 days’ confinement in the county jail. He appeals.
The indictment charges that on the 30th day of January, and within twelve months before the finding’ of the indictment, the defendant did “unlawfully suffer and permit divers persons to habitually assemble in a house, same being a brick house near what is known as Rice-ville, in Pulton County, Kentucky, and same being then and there in his occupation and under his control, and there were permitted divers evilly disposed people to assemble and engage in drunkenness and loud and boisterous language, to the common nuisance of all good citizens of the Commonwealth of Kentucky then and there in the neighborhood, passing and re-passing, residing and being and having the right then and there to pass, re-pass, reside and be, etc.”
Several witnesses for the Commonwealth testified that they had seen colored persons coming from defendant’s store with bundles under their clothes, which they took to be whiskey. They never saw defendant sell any whiskey. Never saw anybody drunk on his premises, and never heard any loud and boisterous language coming’ therefrom. They knew the reputation of defendant’s place for peace and good order, and its reputation was bad. Its reputation as a whiskey selling place was also
Defendant then proved by several witnesses that they •had frequently bought groceries from defendant’s store; that they had never seen or heard any noise or misconduct, and had never seen any drunkenness there. They further testified that defendant conducted a quiet and orderly place.
It will be observed that defendant was not indicted for the offense of selling liquor without a license, or contrary to the local option law. He was indicted for maintaining a nuisance of a particular kind. The nuisance complained of is that he permitted divers evilly disposed persons to assemble and engage in drunkenness and loud and boisterous language. The only evidence that anyone ever engaged in loud and boisterous language is that the reputation of his house for peace and good order was bad. This of itself is not sufficient to sustain a conviction on that phase of the case. King v. Commonwealth, 154 Ky., 829. Even if he had been indicted for maintaining a nuisance by selling liquor contrary to law, the reputation of the place as one where liquor was illegally sold would not be admissible. Commonwealth v. Eegan, 151 Mass., 45. Such evidence is not, therefore, competent on the charge of maintaining a nuisance by suffering drunkenness. "While several witnesses testified to seeing persons going from defendant’s store with bundles under their clothing which they took to be whiskey, not a single witness testified to having seen a single person drunk on defendant’s premises, or to having seen a single drunken person coming from the premises. While such evidence might tend to establish the fact that defendant was engaged in selling whiskey, it is not suf
Judgment reversed and cause- remanded for proceedings consistent with this opinion.