168 S.W.2d 342 | Ky. Ct. App. | 1943
Affirming.
In this suit, filed by the Commonwealth's Attorney of the district against Jim Moore and his wife, Bessie Moore, the court adjudged their house and lot forfeited as a nuisance because the property had been used by and with the knowledge of the owners for "the purpose of unlawfully selling or * * * possessing intoxicating liquors in dry territory." KRS
The grounds of appeal are that the statute is unconstitutional and the evidence does not support the judgment.
The provision of the statute has been specifically held constitutional, Froedge v. Commonwealth,
"No person shall be attained of treason or felony by the General Assembly, and no attainder *57 shall work corruption of blood, nor, except during the life of the offender, forfeiture of estate to the Commonwealth."
In response to the same argument as to the invalidity of a similar statute, the Supreme Court of Alabama stated that a like constitutional provision and another forbidding the imposition of excessive fines or cruel and unusual punishment "have nothing to do with the case, for they relate to legislative punishment, or legislation for the punishment, of criminal or supposed criminal offenses, whereas that part of the statute to which we have referred is justified on the ground that it is a provision for the abatement of nuisances." House and Lot v. State ex rel. Patterson,
The appellant, Jim Moore, had been previously convicted on an indictment of maintaining a common nuisance at the place by selling and permitting liquor to be kept and sold there. His wife, jointly indicted with him, had been acquitted. The result of the criminal prosecution, though competent as evidence in the civil action, is not conclusive. Wolff v. Employers Fire Ins. Co.,
Mrs. Moore was living there all the time. She is described as a quiet, meek little woman, in ill health and of subnormal mentality, wholly dominated by her husband. Her parents were law-abiding, high-type citizens, and personally she is said to be a good woman and bears a good reputation. Her reputation is that she had not been engaged in handling liquor. Moore testified that: "If there was any whiskey sold on the premises my wife did not know it" and: "Every time I come in acting like I was drinking or smelt like it she would raise all kind of Cain about it and I would make her hush about it the best I could." He admitted having handled liquor on the premises, but stated he kept it a secret from his wife. She testified she did not know of her husband or anybody else ever having sold any whiskey on her property, and if it was done it was without her consent. Other than this denial, which is contradicted by the activities described, plainly visible by the neighbors, and the fact that this is a small cottage, the defense offered for Mrs. Moore is only that which is calculated to create sympathy for her. She is entitled to that, for it is unfortunate that her home must be forfeited for the persistent, criminal conduct of her husband. She must, however, bear the consequences of having subjected herself and her property, whether a joint or entire interest, to a lawless husband rather than having sought refuge and protection at the hands of the law enforcement officers.
The evidence fully sustains the judgment and it is affirmed.