People v. French

BISHOP, J. Appellant’s conviction on the charge that she was illegally in possession of intoxicating liquor is dependent entirely on the proof that it was present, with her knowledge, in the residence where she and her husband lived. Were she living alone, or were there any evidence that she claimed or had exercised any dominion or control over the liquor, we would have no hesitation in affirming the judgment. We do not believe that a conviction of a wife is supported when no fact is established other than the presence of the liquor in the house of herself and her husband, even though she had knowledge of its presence.

[776]So far as we are aware, the precise question has not been decided by any appellate court of this state; hut we are not without the guidance of judicial authority. In Tewmy v. Commonwealth, (1925) 206 Ky. 522 [267 S. W. 1087], the wife was convicted of the possession of whisky found in a chicken-coop twenty feet back of the premises where she and her husband resided. He had already been convicted on the same charge. We find this pertinent language in the court’s opinion:

“Appellant’s guilt must be found, if at all, from inference arising from the presumption of guilt because of her occupancy of the premises upon which the contraband liquor was found as a member of her husband’s household, he of course being, under the proven facts, the head of the family as well as the controller of the premises.”

The court then expressed a doubt of the validity of the conviction even had the wife known of the presence of the liquor “since we do not conclude that under such circumstances she would be called upon, in order to exculpate herself, to abandon her house, and separate from her husband, and dissolve the bonds of matrimony between them”, but as the wife had no knowledge her conviction was held to be without doubt improper.

This Tewmy case was followed with approval in Gullett v. Commonwealth, (1928) 225 Ky. 194 [7 S. W. (2d) 1050], where a wife and husband were jointly charged with possession of a still. The location of the still was known to the wife in this case, a fact that made no difference in the result. The court said (p. 198 of 225 Ky.) :

“Of course, we do not mean to hold that a married woman cannot commit the offense under consideration, or similar ones, but we do declare her conviction must be sustained by something with more probative force, and of more tendency to convict, than the mere inference to be drawn from the fact of her being the wife of a husband with whom she resided in the household where the contraband goods were discovered.”