Durein v. State

38 Kan. 485 | Kan. | 1888

The opinion of the court was delivered by

Horton, C. J.:

After Frank Durein had been convicted of a violation of the prohibitory liquor law, the district court required him to give security for his good behavior for the term of two years, in the sum of five hundred dollars; and to be committed to the jail of Shawnee county until the security was given. (Crim. Code, §242.) To prevent himself from being imprisoned, subsequently, with John R. Mulvane and Conrad Kreipe as sureties, he executed a bond, conditioned as follows:

“That the said Frank Durein shall and will be of good behavior for the term of two years from the 23d day of February, 1884, and that he, the said Frank Durein, shall not and will not at any time or place within the state of Kansas during said term of two years, in person or connection with or by the means or through the agency of others, or anyone else, either directly or indirectly, in any form or manner, barter or sell intoxicating liquor of any kind; nor shall he, the said Frank Durein, during said term of two years, in any form or manner, violate any of the provisions of an act of the legislature of the state of Kansas, entitled ‘An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.’ ”

It will be noticed that there are many superadded words of condition, beyond what were authorized by the court or statute. One of the superadded conditions prohibited Durein for a term of two years from obtaining any permit to sell intoxicating liquors, even if he fully complied with the statute. The court was not authorized to require such a bond, and the bond taken was a substantial departure from the order of the court. It was not executed voluntarily, and therefore it is invalid. (Roberts v. The State, 34 Kas. 151; The State v. Roberts, 37 id. 437.)

We ai'e referred to The State v. Cobb, 71 Me. 198, as holding that superadded words of condition beyond what are authorized, do not invalidate a bond, but may be treated as surplusage only. The decision in that case rests upon The State v. Brown, 41 Me. 535. In the latter case, three of the judges filed a vigorous dissent.

We think the law is properly declared in Roberts v. The State, supra, and are therefore unwilling to follow any authorities that conflict therewith.

The judgment of the district court will be reversed, and the cause remanded, with direction to the court below to enter judgment in favor of plaintiffs in error upon the agreed statement of facts and the special findings of the court.

All the Justices concurring.