67 P. 884 | Kan. | 1902
The opinion of the court was delivered by
This is an appeal from a conviction of the offense of maintaining'the nuisance of a place' where intoxicating liquors were sold in violation 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 information :
“That Nick Chiles, at the county of Shawnee, in the state of Kansas, on the-day of September, A. d. 1897, and on divers other days and times before and after said-day of September, a. d. 1897, did then and there unlawfully keep and maintain a room in the dining-hall building in the fair-grounds, the same being a place where spirituous, malt, vinous, fermented and other intoxicating liquors are sold, bartered, delivered, and given away; and the same being a place where persons are permitted to resort for the purpose of drinking intoxicating liquors*454 as a beverage, and the same being a place where spirituous, malt, vinous, fermented and other intoxicating liquors are kept for use, gift, sale, barter, and delivery,” etc.
The specific objection to the information is that it fails to state concurrence 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 room 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. The defendant therefore is not charged with the act of selling the liquors or countenancing their' sale ; he is charged only with having once kept a 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 indictment 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 properly charged in the past tense, but the alleged 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 the 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.