114 Kan. 699 | Kan. | 1923
The opinion of the court was delivered by
The Brizendines were convicted of keeping a liquor nuisance, and appeal.
Brown and his wife, his sister, Mrs. Brizendine, and her husband, were living in a house with four rooms on a farm near Westphalia.
Brizendine owned an automobile, which was at the place when it was searched. Eighteen pint bottles and four or six quart bottles of liquor were found in the automobile.- The automobile was locked, and Mrs. Brizendine had the key. Previous to the search a container in a sack, and bottles containing liquor, had been found in the weeds of a slough some distance from the house, where they had been taken by an automobile. Previous to the search there had been much going and coming in the automobile by Brown and the Bi’izendines. Things had been unloaded from the automobile at the kitchen door at night. A barrel and a sack of sugar were among the articles brought there in the automobile. The automobile was the only means of conveyance the occupants of the house possessed.
The occupants of the house used quantities of water, but very few clothes were hung on the line. Brizendine appears to have been good at drawing water, and had been observed to draw as many as thirty gallons of water from the cistern at one session, and to carry water into the house.
The part of the farm on which the house stood had been rented by Brown about the first of September. When the Browns and the
Mrs. Brizendine testified her husband was a railroad man who, in the summer of 1922, was on strike. She sold her home in Kansas City, stored her furniture, and since her brother was going to Kansas, she and Brizendine came with him, to buy a farm. The automobile was purchased on August 25, and previous to search of the house the automobile had been used a good deal, almost every day. The reason was, Brown was teaching her and Brizendine to drive the automobile, and they were looking at farms. She was with her brother when a sack of sugar was brought home, but it was for use in cooking. She did pick some wild grapes, but some grape butter or something was made. They all lived together, and kept no account of expenses, but she had no knowledge of when Brown got his stuff or where he got it, or how he got it to the house. Testimony like this was given for the defendants, ad nauseam, and some explanation more or less credible was forthcoming for every fact and circumstance connecting the Brizendines with keeping and running the still. It seems they did buy a farm, about October 17, and there was testimony Mrs. Brizendine said to one of the officers, the officers would not have gotten them if the officers had not come that day.
Brown and the Brizendines were charged in three counts with manufacturing intoxicating liquor, having intoxicating liquor in their possession, and keeping a place where intoxicating liquor was manufactured and kept for unlawful purposes. Brown pleaded guilty, and made heroic effort by his testimony to clear his sister and her husband. The jury'made magnanimous response by acquitting the Brizendines of everything except assisting in keeping the liquor' nuisance.
The appellants say the evidence of guilt was all circumstantial; to support conviction, circumstantial evidence must be incompatible with any reasonable hypothesis except guilt, and incapable of explanation on any reasonable hypothesis except guilt; and in this instance the circumstances were compatible with innocence of the appellants.
The evidence of guilt was not , all circumstantial. The fact of
“However, where such testimony fairly tends to show the guilt of the defendant, the weight of the same is for the jury; and where the jury has found, after being properly instructed, that the defendant is guilty, and the verdict has been approved by the trial court, it will not be disturbed because of the insufficiency of the evidence.” (Syl. f 1.)
Hunter was convicted of stealing cattle. He was in the vicinity of the stolen cattle when they were found, but he denied custody of the cattle, denied making statements tending to show guilt, and gave plausible explanations of the incriminating circumstances, which made them appear compatible with innocence. The court said:
“These denials and explanations were for the jury, who, upon proper instructions, have chosen to disbelieve him, and have found not only that the testimony offered by the state was true, but that the facts and circumstances were such as to be inconsistent with any other rational conclusion than that the prisoner was guilty of the charge. . . . The testimony offered seems to have been sufficient to satisfy the understanding and consciences of the jury that the defendant was guilty. Under these circumstances the conviction must stand.” (pp. 305, 306.)
The appellants say there was no conflict in the evidence. There was conflict in this sense: Testimony of Brown and the appellants was not consistent with a lot of plain indications of guilt, and the jury were obliged to determine on which they would depend. Concede, however, there was no conflict in the evidence, and the case rested entirely on harmonious evidence of the state. The inferences to be drawn were inferences of fact, to be drawn by the jury. The jury is the body to determine whether circumstances are compatible with any rational conclusion except guilt, not this court, and when the jury has made the determination, and the trial court has approved it, this court does not interfere.
The appellants were acquitted by the jury of manufacturing intoxicating liquor, and of having intoxicating liquor in their possession, and they say they could not be guilty of maintaining the nuisance unless they were guilty of possession1 or manufacture or both. The court is not prepared to say that assisting in maintaining a place where intoxicating liquor is manufactured necessarily involves possession of the liquor or participating in the processes of its production. Concede, however, that under the evidence in this case, maintaining the place necessarily involved manufacture and possession of the liquor, the jury, on ample evidence, has found appellants guilty beyond a reasonable doubt of assisting in keeping the place, and the jury must make its own peace with conscience.
The judgment of the district court is affirmed.