8 Kan. App. 265 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
This was a prosecution begun in the police court in the city of Holton, for the violation of the ordinances of said city by selling intoxicating liquors without being engaged in the business, of a druggist and not having a permit for such sales for lawful purposes, and' by keeping a tippling shop in said city. The defendant below, the appellant here, was convicted in the police court and duly took an appeal therefrom to the district court, where he was
The first assignment of error is that the court erred in sustaining plaintiff’s objection to the introduction of evidence on the motion to quash the warrant. This objection was made on two grounds : (1) That no notice of the intention to introduce evidence in support of said motion was given the city ; and (2) that as the complaint was regular on its face and verified positively, it was sufficient to give the court jurisdiction to issue the warrant and put the defendant on trial. This last proposition contains the substance of the principal contention in the case, except that it is contended by the appellant that the complaint was not verified positively. In this he is mistaken. The body of the complaint commences : “Ed. Ernest, of lawful age, being first duly sworn, on oath deposes and says.” This is followed by a recital of the alleged facts constituting the offense, and ends with the signature of the complainant and the jurat of the officer administering the oath. All this is positive and contains no qualification whatever. The exact question herein was decided by the supreme court in the case of The State v. Carey, 56 Kan. 84, 42 Pac. 371. The first section of the syllabus reads :
“An objection to a warrant that the person who verified the complaint, although in positive form, had no knowledge of the facts save such as were based upon rumor, hearsay, information,-and belief, and a subsequent plea in abatement to ah information for a felony on the same ground, were properly overruled without any evidence thereon.”.
We think that this case settles the law of this state on the main question at issue herein and disposes of the first and second assignments of error.
The fourth, fifth, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth and fifteenth assignment of error are without merit and require no comment other than as above given. The sixth and seventh assignments of error are in relation to the evidence of the probate judge, who testified that he was the custodian of the records of druggists’ permits issued ; -that he had examined the records of his office for several years and that no druggist’s permit had been issued to the defendant. This was competent evidence. (The State v. Schweiter, 27 Kan. 501.) The sixteenth assignment of error is: “That the court neglected to instruct the jury as to the presumption of law arising from his (the defendant) neglecting to testify as a witness.” This was not error. The statute expressly provides that the circumstance of the defendant’s neglect or refusal to testify shall not be referred to by any attorney prosecuting in the case,, nor shall the same be considered by the court or jury before whom the trial takes place. The remaining allegations of error are based on those hereinbefore considered, and are not valid.
The judgment of the court below is affirmed.