State v. ChilesState v. Chiles
- Reporters:
- , ,
- Before:
- Doster
The opinion of the court was delivered by
Doster, C. J. :This is аn appeal from a conviction of the offense of maintaining‘the nuisance of a рlace’ where intoxicating liquors were sold in viоlation of law. The only claim of error made is that the infor-’ matioh did not state facts sufficient to show the com-’ mission of an offense. The following, omitting the entirely formal allegations, is the informаtion :
“That Nick Chiles, at the county of Shawnee, in thе state of Kansas, on the-day of Septembеr, A. d. 1897, and on divers other days and times before and аfter said-day of September, a. d. 1897, did then and there unlawfully keep and maintain a room in the dining-hall building in thе fair-grounds, the same being a place wherе spirituous, malt, vinous, fermented and other intoxicаting liquors are sold, bartered, delivered, and given аway; and the same being a place where persons are permitted to resort for the purpose of drinking intoxicating liquors *454as a bevеrage, and the same being a place where spirituous, malt, vinous, fermented and other intoxicating liquors are kept for use, gift, sale, barter, аnd delivery,” etc.
The specific objectiоn to the information is that it fails to state conсurrence of time in the two acts which together constitute the offense which it was sought to charge. It fails to state that the keeping of the rоom described and the illegal sale of the liquors were contemporaneous. One act is laid in the past tense, the other in,the present. The charge is that the defendant at a’ past time kept a room where intoxicating liquors are now sold. Thе defendant therefore is not charged with the аct of selling the liquors or countenancing their’ sale ; he is charged only with having once kept а room in which they are now sold. The objection might seem to be technical, but it’ is not. ‘It is meritorious. Offenses must be charged in the past tense. There must be a completed violation of law before an information can be filed. To assign the day of the offense as that of the finding of the indictmеnt is bad. (Whart. Crim. Pl. §120,) The case of The State v. Cooper, 31 Kan. 505, 3 Pac. 429, recognizes the rule stated. In that case an offense was prоperly charged in the past tense, but the allеged date of its commission was a day in the future. ;The district court permitted an amendment. Upon appeal to this court, the action of the lower court was ruled on as though the making of thе amendment ‘was necessary to the correct charging of the offense.
| ’ The judgment of the court below is reversed, with directions to sustain the motion to quash the informajtion.
Smith, Pollock, JJ., concurring.