City of Kansas v. Smith, No. 10662

No. 10662 | Kan. | Nov 7, 1896

Allen, J.

It is extremely doubtful whether an appeal could be taken by the City from the order of the Police Judge discharging the defendant after a trial. The State v. Hickerson, 55 Kan. 133" court="Kan." date_filed="1895-01-15" href="https://app.midpage.ai/document/state-v-hickerson-7890047?utm_source=webapp" opinion_id="7890047">55 Kan. 133, and cases there cited. But as to this we do not now decide, nor do we deem it necessary to consider the matters discussed in the brief of counsel for the City. The substance of the complaint is a charge against the defendant of maintaining a tippling-shop, which, under the statutes of this State, is a nuisance. ¶ 2533 Gen. Stat. 1889. The complaint fails to state the place where such tippling-shop was kept. It is provided in section 399 of the act concerning Crimes and Punishments :

“in prosecutions' under this act, by indictment, or otherwise, it shall not be necessary to state the kind of liquor manufactured or sold, and shall not be necessary to describe the place where sold, except in prosecutions for keeping and maintaining a common nuisance, or when a lien is sought to be established against the place where such liquors were illegally sold.”

While this is a prosecution for the violation of a city ordinance, the substance of the offense sought to be charged is the same as that defined in paragraph 2533 ; and the reasons rendering it necessary to state the place where the nuisance is maintained, in a prosecution under a city ordinance, are the same as in one under the statute. Whether at common law it would be necessary to describe the exact place where the offense is charged to have been committed is a matter of much doubt. 1 Bishop, Crim. Proc. §373. As the substance of the offense charged is keeping a place where persons resort for the purpose of drinking intoxicating liquors as a beverage, the place at which the defendant is charged with keeping it would seem to be an essential and very important part of the description of the offense ; and there being' doubt as to the rule at common law, we think that that indicated by the statute in prosecutions for violation of the State law on the same subject ought to control in prosecutions for violations of a city ordinance. We can only conjecture as to the grounds on which the Court based its decision,— the record being silent, and no appearance being made for the defendant. The complaint appears to us open to the objection that it fails to state where the alleged tippling-shop was maintained.

The judgment is therefore affirmed.

All the Justices concurring.