39 Kan. 128 | Kan. | 1888
On October 1, 1883, in the district court of Lyon county, Louis Macke was- convicted upon one count of an information charging him with the sale of intoxicating liquors in violation of the prohibitory law, and acquitted upon two counts of the information; and upon such conviction he was fined in the sum of $250, and adjudged to pay the same and the entire costs, and to stand committed until all were paid. He was never committed to jail. On February 28, 1886, the state filed a petition in the district court of Lyon county against Louisa R. Pfefferle and her husband, O. Pfefferle, alleging the conviction of Louis Macke, and that the fine and costs had never been paid; and further alleging that the unlawful sale of intoxicating liquors was in a certain building owned by Louisa R. Pfefferle and her husband, and that they had rented the building and had knowingly suffered the same to be used for the unlawful sale of intoxicating liquors; and the state sought to have Macke’s fines and costs charged upon the building as a lien. Louisa R. Pfefferle interposed a plea of the statute of limitations in the case, which was sustained by the court below. The state brought the case' here, where the judgment of the lower court was reversed, and the case remanded for trial upon its merits. (The State v. Pfefferle, 33 Kas. 718.)
This case was tried in the court below at the January term for 1886, and upon the trial it was shown that the lower portion of the building was used for business purposes, the front as a grocery store, and the rear as a saloon; that a lease for the renting of the building had been entered into between O. Pfefferle and Perrier & Weiss, which lease was signed by O. Pfefferle in his own name; that afterward this lease wás assigned by Perrier & Weiss to one O’Lowd, who ostensibly conducted the grocery business, and that Louis Macke ’conducted the liquor business, but whether for himself or as clerk for O’Lowd, or some one else, the record does not disclose; that Louis Macke was the brother of Mrs. Pfefferle, and the
I. It is said that the original judgment against Louis Macke was erroneous in that he was adjudged to pay all the costs of the prosecution upon the two counts upon which he was acquitted, as well as the costs upon the count upon which he was convicted. The only evidence that any costs were improperly taxed against Macke was his motion to retax the costs in the case, but nothing was shown in the Macke case, nor in this case, as to the amount of costs erroneously taxed; and, therefore, in this collateral way, the judgment against Macke cannot be changed, corrected, or reversed.
II. It is further said that it was error in the trial court to permit the agency of the husband to be proved against the wife by his evidence; and it is also said that the court erred in permitting the husband to testify generally in the case. We have recently decided that an agent may testify as to his authority to act for his principal; and that this rule is not changed by the fact that the agent is the husband of the principal. (Civil Code, § 323; W. & W. Rld. Co. v. Kuhn, 38 Kas. 104; same case, 16 Pac. Rep. 75; French v. Wade, 35 id. 391.)
“ The following persons shall be incompetent to testify: . . Third. Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the-other, or when they are joint parties and have a joint interest in the action; but in no case shall either be permitted to testify concerning any communication made by one to the other during-the marriage, whether called while that relation subsisted or-afterward.” (Busenbark v. Busenbark, 33 Kas. 577.)
III. The next alleged error is, that the building in which the liquor was sold was a homestead; and that the lien for fine and costs could not fasten itself or be foreclosed upon a homestead. We do not think the question is properly in the record. (The State v. Snyder, 34 Kas. 425.) The answer of Louisa R. Pfefferle and O. Pfefferle contained a general denial only. No claim of homestead was alleged. No evidence was offered upon the part of the defense tending to show that the premises described in the petition were occupied as a homestead by Louisa R. Pfefferle and family. It was brought out in the examination of some of the witnesses that the Pfefferles resided over the store in which Macke did business; and that Macke lived in the family; but O. Pfefferle, the husband, testified that he was living over the store “a part of the time, not for all the time.” It also appears from the testimony of one witness, that the Pfefferles moved away from Emporia into the country sometime in 1883 or 1884. No instruction was asked by either party as to whether the store was occupied by the Pfefferles as a homestead, and no such issue was fairly passed upon by the jury, or the court.
IV. The next error alleged is the manner in which the title of the real estate was proved to be in the name of Mrs. Pfef
“It shall be the duty of the county attorney to appear in the several courts of their respective counties and prosecute or defend, on behalf of the people, all suits, applications or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested.” (See also § 71, ch. 102, Comp. Laws of 1885.)
"V. Finally, it is contended that an action will not lie under §18 of the prohibitory act, until Macke has been committed to the jail. This point is disposed of in Hardten v. The State, 32 Kas. 637; and The State v. Pfefferle, 33 id. 718.
The judgment of the district court will be affirmed.